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SKETCH OF THE LAWS 



RELATING TO 



SLAVERY 



IN THE SEVERAL STATES OF THE UNITED 
STATES OF AMERICA. 



SECOND EDITION. 



WITH SOME ALTERATIONS AND CONSIDERABIE ADDITIONS. 



GEORGE M. STROUD. 

PHILADELPHIA : 

1856. 



SKETCH OF THE LAWS 



KELATINQ TO 



SLATERY 



IN THE SEVERAL STATES OF THE UNITED 
STATES OF AMERICA. 



WITH SOME ALTERATIONS AND CONSIDERABLE ADDITIONS. 

BY 

GEOEGE M. STROIIDc 



PHILADELPHIA; 
185G. 



Entered according to Act of Congress, in the j'ear 1856, by 

GEORGE M. STROUD, 

in the Clerk's Office of the District Court of the United States in and 
for the Eastern District of Pennsylvania. 



V 



.>* 



PREFACE 



The state of slavery in this country, so far as it can be 
ascertained from the laws of the several independent sove- 
reignties which belong to our confederacy, is the subject of 
the following sheets. This comprises a particular examina- 
tion of the laws of the states of Delaware, Maryland, Vir- 
ginia, North Carolina, South Carolina, Georgia, Kentucky, 
Tennessee, Louisiana, Mississippi, Alabama, and Missouri. 
With respect to the remaining states, slavery in some having 
been abolished and in others never tolerated, a cursory notice 
of a few of their laws, chiefly important for the evidence 
which they furnish of the right of these states to the appella- 
tion of non-slave-lwlding, is all which the title or object of 
this work requires. 

The District of Columbia, though in this connection not 
properly denominated a state, yet, from its important charac- 
ter in being exclusively within the jurisdiction of the Federal 
Government, deserves an equal share of attention. It hap- 
pens, however, that this District, in regard to slavery as well 
as many other topics, is not regulated integrally/ by a code of 
laws enacted for the purpose by Congress, that body having, 
by an act dated February 27th, 1801, declared that the part 
of the District of Columbia which had been ceded to the 
United States by the state of Virginia should be governed 
by the laws which were then in force in Virginia, and that 
the other part, which had been ceded by the state of Mary- 
land, should in like manner be governed by the laws then in 
force in Maryland. But few alterations have been made in 
the laws affecting the condition of slaves in either of the states 
just named since the date of the act of Congress; the quota- 
tions, therefore, given from their respective codes, being ap- 
plied in conformity with the distinction established by the 
act of Congress, may, with but little hazard of error, be re- 
ceived as the laws of the District of Columbia. 

Such provisions of the Constitution of the United States 
as might be fitly introduced into this sketch have been added 
in 2iQ. Appendix. Several acts of Congress will be found in- 
serted there also These, however, are not numerous, since, 
from the peculiar relation which subsists between the Federal 
Government and the individual states, the former, except 



iv PREFACE. 

within the District of Columbia and the territories not yet 
incorporated into the Union as states, is restrained from the 
exercise of legislative functions on all subjects of a character 
exclusively municipal. 

The value of a work like the present must depend mainly 
upon the authenticity of its materials. On this point but 
little, if any, exception can be justly taken. The most ap- 
proved code of each state was sought for, and, in most in- 
stances, obtained. The laws of Delaware, Maryland, Virginia, 
Georgia, Kentucky, Louisiana, Mississippi, Alabama, and Mis- 
souri, have been cited, from publications made under the ex- 
press sanction of the several legislatures of these states. The 
laws of South Carolina have been drawn principally from a 
source entitled to equal consideration. I mean the Digest by 
Judge Brevard. This, however, having been issued from the 
press in 1814, it became necessary to procure a work which 
would indicate the changes eifectcd by the legislature since 
that period. The second edition of James' Digest has been 
used for this purpose ; and, though the first edition of this 
work is stated in Griffith's Law Register to have been imper- 
fectly executed and not to deserve much reliance, yet, a 
second one having been called for, it seems fair to presume 
that in this the errors of the first have been corrected and 
its defects supplied. 

Having been under the necessity of bringing together the 
laws of so large a number of independent states, it must be 
obvious that considerable difficulty existed in assigning to each 
part its proper place and giving to each its due effect, and, at 
the same time, preserving the appearance of symmetry in the 
whole. As the best method of meeting this difficulty, when 
the provisions of different codes on the same point were in the 
same language, or, as was most commonly the case, the same 
in substance but not in language, I have in general used a 
transcript from 07ie code, and, having noted in immediate 
connection the work from which it was taken, have added 
successively references to the other codes. The words "siini- 
lar," and ^^ nearly similar," are sometimes interposed, the 
purpose of which needs no explanation. The titles of the 
different Digests being cited seemed to me to render a per- 
petual repetition of the names of the states unnecessary. In 
many occasions, therefore, these are omitted. 

That the comments which I have offered on many of the 
laws might be the more readily understood, and their propriety 



rPvEFACE. 



^ ^ e J hn^rf^ in aluiost every cmotation wHch has been 

'° 0? the actual condition of slaves this sketet does not pro- 
fc=?tn treat In representative repnbllcs, however, Uko the 
titled StX Ihere^ ^l^ Zl£^^ ^^ 

"°Ttr very existence of slavery Is calculated to proauce the 

the intemperance of passion toward lus slave it . _ 

ways he a sufficient one that h>s ch^U pre ent ^^^^^ 0^^^^ 

TYrInNY, cannot but be stamped by it WUii 



PECULIARITIES." 

Philadelphia, Octoher Sth, 1S27. 



PREFACE TO THE SECOND EDITION. 

Nearly twenty-nine years have elapsed since the original 
of this sketch was published. At that time the sentiment 
seemed to be universal throughout the United States, if not 
the whole civilized world, that in itself, as applied to reason 
able beings, involuntary servitude, except as a punishment for 
crime, was indefensibly wrong. In respect to its existence in 
these United States, it was everywhere spoken of as a moral 
and political evil. 

But, as it had been introduced among us during the period 
of our colonial dependence on Great Britain, and the number 
of the bond had become very great, — as, by reason of native 
constitution or long-continued degradation, the coloured race 
was manifestly inferior to the white, — it was universally felt 
and acknowledged that the problem of their emancipation 
was exceedingly difficult to be worked out. 

Of the six Presidents of the United States, yb»r had been 
from a slave-hold in (/ state, — Virginia, the largest of the ori- 
ginal thirteen, and one of the most, if not the most, influential 
of all. No one of these illustrious men was the advocate of 
slavery at any known period of his political history. 

Wasuington has perpetuated his sentiments in the most 
unequivocal manner by liberating the great body of his slaves 
by his last will. Jefferson prepared and proposed a Con- 
stitution for Virginia, by which all born after the year 1800 
were to be free. Madison was unwilling that the word slave 
should have a place in the Federal Constitution, and, on his 
motion, it had been struck out from ti projected article of that 
instrument. In respect to Monroe, no evidence, it is be- 
lieved, exists to show that devotion to the cause of freedom, 
in its large and just sense, was less ardent in him than in the 
bosoms of his illustrious predecessors. 

About the year 1830, for the first time, so far as my infor- 
mation extends, among men of the least political repute, it 
was announced by a governor of South Carolina that the in- 
stitution of slavery was eminently useful and beneficent. And 
subsequently a Senator of the same state openly maintained 
the same doctrine. Later still, we have been presented with 
elaborate essays of the same general complexion from the pens 
of some of the most gifted and eminent scholars of the South. 

The territorial dominion of the Federal Government has 
been greatly extended of late years. The augmentation of 
vi 



PREFACE TO THE SECOND EDITION. VU 

fhP Slave power-the political strength of the slave-UUinp 

chaaced to look into ^^^ ^^;^:^f \y tHtLment, at page 108, that 
States," ^vlien my eyo yas «^"ff ., ^ .^^ter to give slaves 200 pounds 
the lIws of Lo^miana '' "^^'^Ztttirom^orl while he was in Virginia. 
of pork a year." This ^^^\t'l7rlJTy^'^^^ he should reach Louisiana, 
Thinking the error ^^^/^.^^^'^r^ saw and heard there. To my sur- 
I turned to his account of what l^^^aw ana ^.^ previous 

prise, I found repetitions, f.fgJ^/^^aVe^^,^ derived f^om i^.. Revised 
V^T'oi llat^ndXr hari;r4f not ;.e. (and, I presume, is 
fr;o:)f pSfTht dietof ^1-^:^^.^^^ be so misled, what 

eoSd^c^lf K ^ ^4|i - — - — "^^^^ 
of the kind alluded to, on transient visits. 



viii ruEFACE to second edition, 

and contented condition of the slave population wliicli he or 
she has witnessed. Much of this is true. For there are, no 
doubt, many humane masters and some contented slaves. But 
visitors are not apt, in polished life, to go where they are not 
invited to go. Their entertainment, as well as their proper 
place, is in the parlour and not in the kitchen. To follow a 
gang of field negroes under the superintendence of an overseer 
or a driver would be a poor pastime, — ^uncomfortable in a cool 
day, and quite intolerable in a hot one. What visitor would 
think of penetrating the negro quarters j or be inquisitive as 
to what clothes were worn in the fields, what food provided, 
in what quantities, and how and when it was allowed to be 
eaten, — when, how, and where were the indolent, the perverse 
and the refractory punished ? Who would invite his guests to 
so revolting a spectacle ? 

" Nee pueros coram populo Medea trucidet 
Aut humana palam coquat exta nefarius Atreus." 

Again — we are told, in the religious periodicals, of the com- 
mendable labours of the clergy to impart the truths of the 
gospel to the slave. I know nothing which can be more 
worthy of their holy calling ; and I entertain no doubt of 
the extent of their labours, and would fain cherish a belief 
in their success. 

But who connects with the accounts of these praiseworthy 
eflforts the indisputable fact that the only mode of instruction 
of slaves which the laio of the South does not prohibit is oral 
inculcation ? — that to precede or accompany this by teaching 
the slave to read would be visited by severe penalties ? Or 
who bears in mind that no pidjlic provision is made for the 
religious instruction of slaves by whites, whilst the feeble efiforts, 
for this purpose, of those of their own colour, are repressed 
1)1/ law ? 

These and the other manifold evils of slavery, which are 
part and parcel of the institution, and, in the expressed opi- 
nions of its supporters, inseparable from it, seldom meet the 
eye in the numerous and valuable publications which abound 
in this age and country. 

This small volume is designed to supply the proper know- 
ledge of i^Q peculiar institution. It is derived from the most 
AUTHENTIC SOURCES, — the Statutes of the slave-holding states, 
and the reported decisions of their courts of judicature. 

The writer takes occasion here to state distinctly that he re- 
cognises in the fullest extent the great principle of our complex 



PREFACE TO SECOND EDITION. IX 

„0YC'-ument that eacli of the several states is sovereign and 
rndependent, except in so far as it has, by acceding to the 
naSal Constitution, surrendered any portion of Buoh sove- 
rei-rntv ; that davery is a positive and pe<!"l'^V-°l \f °?w 
:5. of 'the states in which it subsists, ^e-^J^^'^f «;*; 
states neither separately nor collectively, nor the i'ederai 
Government itselff can Utmy exercise any power; and i- 
respect, therefore, to the evils or the continuance of the insti- 
tution, no citizen of a free state is in any degree or m any 

'Xt^TdMS^most firmly believe that negro slavery, as it 
exbts in the slave-holding states of the Union, is a moral, 
so a , and political evil of incalculable magnitude; and he a^ 
fimW believes that the free states have the consti utional 
ri#t\nd power to prevent the extension of tl^o insWution 
into territories not yet erected into states. And, having this 
ri..ht and this power, the obligation is equally clear and im- 
pc°rative to make no truce, no compromise, no relaxation of 

S,in the great «t™ggle ^l^'^^^ ^l.^rtSflS 00^0^ 
on the uncontaminated soil over which the Federal (govern 
ment has been invested with sovereign authority. 

The labour of preparing this new edition has been under- 
taken from a strong conviction that such a work is a great 
ntd at th" present time. Its publication rests upon the sob 
responsibility of the writer. He is not now, nor ever has 
S a member of ^nj Aholitior. ox Anti.davery&o,i^iT He 
has acted upon his own judgment. He has taken counsel of 

""sut' althou-h the work has been prosecuted Iwlthout the 
counsel of any one, the writer has been cheered m his laboM 
^h the hope th^t its publication wiU fi^^^ a welcome and 
Xpert throughout the whole of the free ^f 'f "f o™ |e- 
public. He cSls to mind the memorable contest '° 1819-2"' 
which resulted in the Mi^mri Comprom«e, when thepeojJe 
of these siL Stood together, a. if moved tyo.e mmd^n 
^tem opposition to the extension of slave temtory. iiut lor 
hat coTromTse, the battle would have been fought with suc- 
cess tS The e who then profited by ite deceptive prom se 
Tf fire peace have, by its\epeaJ, forced the contet ^S - 
WiU freedom or slavery now triumph? Will the tree states 
suffer themselves to be derived a second timef 
Pini.iDEi.rniA, Aug. 7, 1S56. 



ADVEETISEMENT TO THE FIEST 
EDITION. 



-TiiE laws of several of the states being contained in Du/ests. 
in citing them the names of the compilers have been generally 
given, and not the names of the states. Thus, the laws of 
Ceonjia are cited from ^^Princc^s Digest,'^ 1vol.; the laws 
ot ^outk Carolina, some from ''BrevarcVs BiqcU " 3 vols 
and some from "^W Digest,- 1vol.; the laws oi Norik 
Carolina, from '^IlaywooWs Manual;' 1 vol.: the laws of 
Aentacjnj, from ^^Littell & Sivigert's Digest,'^ 2 vols.- the 
laws orLomstana, to the year 1816, from "3Iartm's Digest^ 

vols.; the laws f Pennsylvania, from Purdort's dLsL" 

1 vol.; the laws oi Alabama, from '^Toulmm's Dlqestr 1 
vol. In Ywiimia and Mississippi, Revised Codes have been 
prepared, and are cited, ^^ Virg. Rev. Code," and ^<Miss. Rev. 
Code, unless in some instances, where the name of the state 
^^ prefixed to the extract made, and Rev. Code only marks the 
Citation. The Civil Code of Louisiana and tie Codeo} 
Jmetcce adopted in the same state are cited by their respect- 
ive titles, and the amele and its number given, but not the 
page, this being the usual and most convenient mode of refer- 
ence as to these codes. 

. With respect to the laws of the other states, no explanation 
IS necessary, as the name of the state is used. P^^^^^^o" 

ADDITIONAL WORKS CITED IN TIIE SECOND EDITION. 
Code of Virginia of 1849. 
Revised Statutes of Louisia,na, 1852 

Morehead & Brown's Digest of Keniuehy Statutes, to 1834. 
^ind Loughborough's continuation of the same. ' 

Clay s Alabama Digest, 1843 

Caruthers&meholson's Statutes of Tennessee, 1836. 
Revised Statutes of North Carolina, 1836-7 
Revised Statutes of Missouri, 1845 
English's Digest of the Laws of Arkansas, 1848. 
Cobbs Dujest of the Laws of Georgia, 1851. 
IJartley's Laws of Texas, 1850. 
Thompson's Digest of Florida, 1847. 



CONTENTS. 



CHAPTER I. 

PAGE 

Of the Persons who may be held as Slaves, and upon what Authority 

they are so held 1 

CHAPTER II. 

Of the Incidents of Slavery — the Relation of Master and Slave 9 

Pkop. I. — The master may determine the kind, and degree, and 
time of labour to which the slave shall be subjected 13 

Prop. II. — The master may supply-the slave with such food and 
clothing only, both as to quantity and quality, as he may think 
proper or find convenient 16 

Prop. III. — The master may, at his discretion, inflict any punish- 
ment upon the person of his slave 20 

Prop. TV. — All the power of the master over his slave may bo 
exercised not by himself only in person, but by any one whom 
he may depute as his agent 28 

Prop. V. — Slaves have no legal rights of property in things, real 
or personal, but whatever they may acquire belongs, in point of 
Imc, to their masters 29 

Prop. VI. — The slave, being a, personal chattel, is at all times lia- 
ble to be sold absolutely, or mortgaged, or leased, at the will of 
his master 33 

Prop. VII. — He may also be sold by process of law for the satis- 
faction of the debts of a living or the debts and bequests of a 
deceased master, at the suit of creditors or legatees 31 

Prop. VIII. — A slave cannot be a party before a judicial tribunal 
in any species of action against his master, no matter how atro- 
cious may have been the injury received from him 38 

Prop. IX. — Slaves cannot redeem themselves, nor obtain a change 
of masters, though cruel treatment may have rendered such 
change necessary for their personal safety 38 

Prop. X. — Slaves being objects of property, if injured by third 
persons their owners may bring suit and recover damages for 
the injury 39 

Prop. XL — Slaves can make no contract 41 

Prop. XII. — Slavery is hereditary and perpetual 41 



Xll CONTENTS. 

CHAPTER III. 

PAGE 

Of tho Condition of tlio Slave considered as a member of Civil 

Society 44 

Sect. I. — A slave cannot bo a witness against a white person, 
eitlier in a civil or criminal cause 44 

Sect. II. — lie cannot bo a party to a civil suit 52 

Sect. III. — Tho benefits of education are withheld from tho slave 58 

Sect. IV. — The means for moral and religious instruction are not 
granted to tho slave ; on tho contrary, the efforts of tho humane 
and charitable to supi)ly these wants are discountenanced by 
law 63 

Sect. V. — Submission is required of tho slave, not to tho will of 
his master only, but to that of all other white persons 07 

Sect. VI. — The penal codes of the slave-holding states bear much 
more severely upon slaves than upon white persons 09 

Sect. VII. — Trial of slaves upon criminal accusations is in most 
of tho slave states different from that which is observed in 
respect to free white persons, and the difference is injurious to 
tho slave and inconsistent with tho rights of humanity 88 

CHAPTER IV. 
On the Laws regulating tho Emancipation of Slaves 96 

CHAPTER V. 

Encroachments induced by Slavery on Freedom of Speech and the 

Press 104 

APPENDIX. 

Of the Laws of the United States relating to Slavery 109 

CHAPTER I. 
On tho Apportionment of Representatives to Congress, &c 109 

CHAPTER II. 
Of tho Acts of Congress relative to Fugitive Slaves 110 

CHAPTER III. 

Of tho Jurisdiction of tho Federal Government over tho territories 

not yet formed into States 119 

Note on a criticism of Professor Blcdaoc 123 



LAWS 

RELATING TO SLAVERY. 



CHAPTER I. 

ON THE PERSONS WHO BIAY BE HELD AS SLAVES, AND UPON 
WHAT AUTHORITY THEY ARE SO HELD. 

The design of this sketch being merely to furnish a connected view 
of the laws which relate to the institution of slavery as it exists among 
us, it would be supererogatory to enter upon a particular inquiry into 
its origin. I shall introduce the subject to the reader, by ascertaining 
what persons are included under the denomination of slaves, and upon 
what authority they are regarded as such. These propositions present 
but little difiiculty, since positive enactments of the several legisla- 
tures of the slave-holding states constitute the authority, and the lan- 
guage by which they are enunciated is sufficiently explicit to prevent 
any misapprehension of their meaning. 

The earliest law which I shall quote is taken from the laws of Mary- 
land. It is an act of the year 1663, chap. 30, in these words: — "All 
negroes or other slaves within the province, and all negroes and other 
slaves to be hereafter imported into the province, shall serve durunte 
vita; and all children born of any negro or other slave, shall be slaves 
as their /a;Aer5 were for the term of their lives." Seciio7i 2. "And 
forasmuch as divers free-born English women, forgetful of their free 
condition and to the disgrace of our nation, do intermarry with negro 
slaves, by which, also, divers suits may arise, touching the issue of 
such women, and a great damage doth befall the master of such 
negroes, for preservation whereof, for deterring such free-born women 
from such shameful matches, be it enacted, S^'c. That whatsoever free- 
torn woman shall intermarry with any slave, from and after the last 
day of the present assembly, shall serve the master of such slave 
during the life of her husband ; and that all the issue of such free-born 
women so married shall be slaves as their fathers tvere.^' 

This law is remarkable for two particulars : — First, tlie recognition 
of the common-law doctrine, "partus sequitur pntreni,^' that the off- 
spring follows the condition of the father : Second, the pur auter vie 
slavery to which it subjected the ichite free-born Englishwomen Avho 
might come within its provisions. The number of this new species of 

1 1 



2 TTHO ABE SLAVES. 

slaves must have been very ;n.i"l. ar. L as tiie act liad bat a Enort jura- 
tion, it is nnnecessary to tak-; iu.:th.er notice of this brar..;-:. ox' ii. 
With re-pect to the ofiprir:g ci sucii marriages consnmin ite i wiile :_e 
act -was in force, as the^e were rci ie -r. -i ;: /'or /*/e, and as aii ac: pa---t:J 
in 1681, for the purp.ose of r-epealir.g x::i: of 16t;^3, ajnta:i.ei an ^z- 
pre« «ai^^ of ike righ". ac'^..\rid u-^dir :\i cr. if 166-3, before the date 
of the repealing act, $o far a? ec^cir-iti r'm iu.i'.zximent of the tcoman XSD 
HEE isstTE. it is not improbable that some of their dezeer^dardi are at 
the present dav in that condition,* 

The doctrine of "partus seqtutnr patrem" obtsuned in theproiince 
till the year 1699 or I'W.f "w-hen a general revision of the laws took 
place, and the acts, in •which this doctrine was recognised, were, with 
many others, repealed- An interral of about fifteen years appears to 
have elapsed without any urritten law on this subject: but, in 1715, 
(chap. 4ri, geet. 22.) the following one was passed: — -All negroes and 
other slaves already imported or hereafter to be imported into this 
province, and all children nmc bom or hereafter to be bom of guch negroei 
and slavtt, shall be slaves during their natural lives." Thus was the 
maxim of the civil law, "partus sequitur ventrem" introduced, and 
the condition of the mother^ from that day up to the present time, has 
continued to determine the fate of the child. 

This maxim of the civil law, the genuine and degrading principle of 
slavery, inasmuch as it places the slave upon a level with brute ani- 
mals, prevails universallj among the slave-holding states. The law 
of South Carolina may be quoted as follows : — "All negroes, Indiaru^ 
(free Indians in amity with this government, and negroes, mulattos 

* It is certain serial such parsms ^er& held in alisoloie bondage until tbe jesa 
1791, when (aSXer the Ia|>9S of mote than a century) it was finally dedded t<y the 
highest eoart of jndicataie in the state, that for want of a eomrietiem. of ihe'whsU 
wamam who or%inaIIy ThUaxed the law, her descendants woe not ^ares, and eoold 
not kgally be retained as sneh. gee &e ease. Mary BmSer ts. Jdam Craig. 2 Harris 
tad WOnrfs BeporU, 214-23Su At a imaeir period, (1770.) in a case in whkh the 
faremU of the same Mary Bntler were plants^ and petitionets far freeOom. it was 
adjudged that they were staves— th^ gnrndmother, a white woman, having been 
married to a nesro dave in the year 16S1, a short time prior to the repeal of ihe act 
^1663L CaseofWSaiamandMayBaeervt.£idfMtrdBoardmum,lIkajlaa^ 
tmd aPBamfs) ReportM. 371-^85. 

A statement of one of theecanadfiir fiiepetitioneTsm tids latt^ease, as it serr^ 
to elnodaie ths ancoialoas portion of the lustoxy of slavey in Haiyland. is b«re 
*"" ' ^ ~ "' ^ •* In the year 1676, the kwd frofneiarj met the as^aably'in pexson : in 
~ ed to Wngland; and in 16S1 he r^urat-d to this pnmnce, brii^ii^ 
.leAnor Butler, grandmotlt^ of the petidoneis, who I prEsome were 
L.-\ .-...^.^ they were both petitioners €>r &i&edom as the descendants of tbe same 
paxient. and were also hisband and wife) ^ wiSh him as a domestie servant. In 1€S1 
^le married,'' (a negro dave.) ~and the repeaKi^ law was passed in the urmth of 



August immediate after the marriage, and his lordsfaip intoested himself in pro- 
curing the repeaL with a view to this particular ease. The act (rf^ 16GS was repeakd 
also, to prevent persons fiom purehaan? white womi^^ (as serrants) - and marrving 
them to their riaves. for the pnrt--<^ - • - r slaves of thenr" (and their o^prins.; 
^ The penalty is laid upon the n. ^^^s. 4c and the dagyman and the 

woman are intended to be £ivoc -^nent. tbon^ not very creditable to 

the early settlers of JfaryLin i i -^ --iiatife to the repeaBus art. and 

also by tl>e terms of the . /jw any sodi wWt^ serran^ 

woHjan. and impose a fir. f tobacco upon the master or 

mistTr^^ who sfe>ald prw . ._ -t ^ of IcSL tAop. i 

T ?^ the act <rf 1699, ci :-;i the laws of this !>?»>. 

and the aetofj; z^kiing certain laws in 



WHO ARE SLAVES. 3 

and mestizos, "who are noio free, excepted,) mulattoes or mestizos -who 
are or shall hereafter be in this province, and all their issue and off- 
spring born or to be born, shall be and they are hereby declared to be 
and remain forever hereafter absolute slaves, and shall follow the con- 
dition of the mother." Act of 1740, 2 Brevard's Digest, 229 ; similar 
in Georgia, Prince's Digest, 446, [Act o/1770;) and in Mississippi, Re- 
vised Code of Mississippi, (of 1823,) page 369; and see 1 Revised Code of 
Virginia, {of 181^,) page 421 ; 2 Litt. ajid Swi. 1149-50, Civil Code of 
Louisiana, art. 183. By this law, any person whose maternal ancestor, 
even in the remotest degree of distance from him or her, can be shown 
to have been a negro, or an Indian, or a mulatto, or a mestizo, not free 
at the date of the law, although the paternal ancestor at each succes- 
sive generation may have been a white free man, is declared to be the 
subject of perpetual slavery. This is a measure of cruelty'^ and ava- 

* Under this law it may frequently happen that a person ■whose complexion is 
European may be legally retained as a slave. The well-informed mind will, upon a 
little reflection, perceive the justness of this conclusion. A competent judge of the 
subject, Don Antonio de Ulloa, whose opinion is confirmed by that of Mr. Edwards in 
his History of the West Indies, furnishes the following testimony : — " Among the 
tribes which are derived from an intermixture of the whites with the negroes, the 
first are the mulattoes; next to these are the tercei-oncs, produced fjom a white and a 
mulatto, with some approximation to the former, but not so near as to obliterate 
their origin. After these follow the quarterones, proceeding from a white and a 
terceron. The last are the quinterones, who owe their origin to a white and a quarte- 
ron. Ttds is the last gradation, there being no visible difference between them and ttm 
v'hifes, either in colour or features ; nay, they are often fairer than the Spaniards." 
See Edvards's West Indies, book 4, chap.l. "A quadroon is the child of a. mestizt 
mother and a white father, as a mestize is the child of a mulatto mother and a white 
father. The quadroons are almost entirely ivhite: from their skin no one would detect 
their origin; nay, many of them have as fair a complexion as many of the haughty 
Creole females. Formerly they were known by their black hair and eyes ; but at 
present thei-e are completehj fair quadroon mules and females'' — Travels through North 
America, &c., by his Highness, Bernard, Dule of Saxe- Weimar Eisenach, page 61, vol. 
ii. Thus the quinterones, who are only four removes from a negro ancestor, are 
found to be undistinguishable from the whites, either by colour or features. Yet 
even these, and the descendants of these to the remotest generation, are deemed 
slaves with us. In point of liict, iercerones are sometimes almost, if not entirely, 
white. An instance of this kind occurred in an individual, whose case underwent 
judicial investigation in the city of Philadelphia, in the year 1786; the report of 
which appears in 1 Dallas' Hep. 167, Pirate alias Belt vs. Dulby. The reporters state- 
ment is given in these words : — " The plaintiff, being the supposed issue of %vhite and 
mulatto parents, attended the defendant to Philadelphia in the autumn of 1784, and 
presented so pure a complexion, that the attention of the Society (Abolition Society 
of Pennsylvania) was excited, Ac. &c. Upon the trial it was given in evidence, that 
the plaintiff was born in Maryland of an unmarried mulatto woman" (who was a 
slave.) 

I now quote another instance of a most extraordinary character, — of wJiite children 
the immediate offspring of a negro mother; and though this may be looked upon as 
a lusvs 7iaturce, to which no reasonable person would expect the general laws of so- 
ciety to be accommodated, yet, as it proves incontestably that ivhitcs are now in slavery 
in one of our states, under the e.rpress sanction of law, I will make no apology for 
introducing it. The instance to which I refer, is thus related by Laurence J. Trotti, 
in a letter to Professor James, of the University of Pennsylvania, dated November 
15, 1825. " Some time in the year 1815, a negro wrman, belonging to Mr. Allen, of 
Barnwell, Soidh Carolina, was delivered by a natural unassisted labour of three 
children ; tivo of them were white males, the other a perfectly black female. The two 
boys are now alive and full-grown for their age. Having, in company with other 
gentlemen, visited the mother and children, expressly to ascertain the truth of those 
facts, I have no hesitation in stating the above-mentioned circumstances as correct," 
&c. &c. See Tlie North American Medical and Surgical Journ(d, No. 2, Ajn-il, 1826, 
page 466. From the character of the Journal from which this account has been 
taken, and especially in reliance upon the judgment of the highly respectable gen 



4 WHO ARE SLAVES. 

rice which, to the reproach of our republics, there is much reason to 
believe has no precedent in any other civilized country. " In Jamaica, 
the condition (of slavery) ceases by exjjrcss law to attach upon the issue, 
at the fourth degree of distance from a negro ancestor. In other 
islands, (British West Indies,) the written \-xy( \s silent on this head; 
but by established custom, the quadroons or mestizos (so they call 
the second and third degrees) are rarely seen in a state of slavery." 
Stephen's Slaveri/ of the British West India Colonics delineated, 27 ; Ed- 
wards's West Indies, book 4, chap. 1. And, as in the Spanish and Por- 
tuguese colonics, slavery is in all respects much milder than in those 
of the British, it is fairly inferrible that a regulation equally favour- 
able to freedom, by custom, if not by express law, prevails there also. 
Of the French colonies and of the Dutch, I have not such information 
as will autliorize an opinion which may desei've much reliance ; yet in 
the Code Noir it is certain many provisions may be indicated, of a 
much more humane character than can be found in the codes of our 
slave-holding states, on kindred topics. 

It has been already incidentally noticed that, by the common law, 
— the law of Villanage, — the offspring always followed the condition 
of the father: it has been also stated, and indeed the law which I 
have just extracted declares this principle in unequivocal terms, that, 
with respect to slavery among us, the condition of the offspring de- 

tlouijin to whom iho letter is addressed, I h-we treated the whole relation as suh- 
stantially true. 1 confess, there is something; (particularly the distance of time 
between the liirth of the children and the ilate of the communicatiouj which leaves 
room to doubt whether an imposition has not been practised on the writer of the let- 
ter, — whether the wliite children were not born of ivldte. parents ; yet, admitting tliis 
supposition to be correct, it M'ould fortify the position, that our lawgivers should pay 
souio respect to coloin-; for here are two white children who have been already in 
slavery more than ten years, and in all probability they will remain so during life. 

An additional case may be here subjoined, illustrative of the general doctrine con- 
tained in this note. An advertisement recently inserted in a newspaper published 
in the city of Philndelphin, offers a reward of one hundred dollars for the apprehen- 
sion of a person allei;:ed to be a runaway slave, who is thus described : — '' Absconded 
from the subscriber on the luth instant, a very bright mulatto man named Washing- 
ton Thomas. llK has sometimes ueen mistaken for a white man!!" What the 
degree of distance of this person from an African ancestor is, does not appear; yet, 
though m(n-e, than once taken for a white nian, he is still claimed as a slave!! See 
Democratic IWss of Angnd 13, 1827. 
Take the following, among many similar cases, occurring in the slave states : — 
"The iW< Jiivrr Journal, at Bowling Green, Pike county, Mississippi, gives the fol- 
lowing, which it correclly classifies as a peculiarly hard case:— 'A case of a slave 
suing for his freedom was tried a few days since in Lincoln couuty, of which the 
following is a brief statement of the particulars : — A youth of about ten years of i\fo 
sued for his freedom on the ground that he was a free white person. The court 
granted his petition to sue as a pauper, upon inspection of his person. Upon his 
trial before the jui-y, he was examined by the jurv and by two learned physicians; 
all of whom concurred in the opinion that very. little, if any, trace of negro blood 
could be discovered by any of the external appearances. All the physiological marks 
and distinctions which characterize the African descent have disappeared. Ills skiu 
was fair; his hair soft, straight, fine, and white; his eyes blue, but rather disposv-d 
to the ha_/.le-nut colour; nose prominent; the lips small and completely covering the 
teoth; his head round and well formed; forehead high and prominent; the ears 
large; the tibia of the leg straight; the feet hollow. Notwithstanding these evi- 
dences of his claims, he was proven to be the descendant of a mulatto woman, and 
that his progenitors on his mother's side had been, and still were, slaves; conse- 
quently he was tbund to be a slave. From the feeling manifested by the community 
where the tri.il was had, we presume his freedom will be purchased and his oducatioii 
lij-ovidod for.' " See l^ulsori's Aincricaii, Advertiser, Oct. IG, ISoi. 



INDIAN ►SLAVES. ■ 5 

pends upon the condition of the mother. A consequence of this hitter 
rule is, that whether born in or out of wedlock, the children are slaveij 
whenever the mothers are so. But as to the child born out of wed 
lock, while from motives of public policy the common law prevents 
him from deriving any benefit from his parents, by way of inheritance, 
it declares, with a consistency strongly recommended by its humanity, 
that he shall not be obnoxious to the evils of slavery. Had these two 
maxims of the common law, i. e. that the offspi'ing follows the condi- 
tion of the father, — and that an illegitimate is always born free, — 
been permitted to retain their place in colonial jurisprudence, none 
but negroes of the whole blood (except from the rare instances of a 
matrimonial alliance between a free woman not black and an abject 
negro slave) would be numbered among the victims of slavery ! ! 
Every mulatto, except from the source just mentioned, would have 
been free, — a destiny at which, though it may have no claim to sup- 
port it superior to what may be avouched for the negro, yet, inasmuch 
as it would have prevented the tremendous augment.ation of our ser- 
vile population, the evils of which are daily more and more felt, 
humanity and religion would have had cause to rejoice. 

I am aware of a reply which may be given to these remarks. It 
may be said, " True, on your principles, no mulatto would be a slave 
— negroes only would be such ; still it would be necessary only to 
encourage matrimony among slaves, and the decrease of slaves, which 
you consider so important, would not happen." Without stopping to 
show that this view of the matter is not altogether correct, it may be 
justly rejoined, that this ^qyj encouragement to matrimony would, in 
itself, be of vast moment, from its moral effects; and, furthermore, 
(what ought by no means to be lost sight of,) since while the parties 
to a marriage contract are in full life, neither of them can lawfully 
enter into a similar contract with a third person, the master's interest, 
or what he conceives to be so, would in a great degree avert the terri- 
ble calamity which is now common — a separation of the parents of the 
same children — a separation of those who ought to be strictly and 
legally husband and wife. 

It may excite the surprise of some, to discover Indians and their 
oifspring comprised in the doom of perpetual slavery; yet not only is 
incidental mention of them as slaves to be met with in the laws of 
most of the states of our Confederacy, but in one, at least, direct legis- 
lation may be cited to sanction their enslavement. In Virginia, "By 
an act passed in the year 1679, it was, for the tetter encouragement of 
soldiers, declared, that what Indian pr-isoners should be taken in a 
war in which the colony was then engaged, should be free purchase to 
the soldiers taking them. In 1682, it was declared, that all servants 
brought into this country, (Virginia,) by sea or land, not being Chris- 
tians, whether negroes. Moors, mulattoes or Indians, (except Turks 
and Moors in amity with Great Britain,) and all Indians which should 
thereafter be sold by neighbouring Indians, or any other trafficking 
with us, as slaves, should be slaves to all intents and ]JU>poses."^ Per 

* •' These acts," says Judge Tucker, speakiufj; of the acts cited in the text, " con 
tinned in force till the year 1091, when, an act having been passed, authorizing a free 

1* 



6 INDIAN SLAVES. 

Judge Tucker, in the case of Iludgins vs. Wrif/hi, 1 Ilenniiig and Mun- 
ford's Reports, 139. 

And in the state of New Jersey, it was decided by the supreme 
court, in the year 1797, "That Indians might be held as slaves." No 
law was adduced to show the origination of such a right, but it ap- 
peared by several acts of assembly, one of which was as early as 
1713-14, that they were classed with negroes and mulattoes, as slaves. 
Chief- Justice Kinsey remarked, "They (Indians) have been so long 
recognised as slaves, in our law, that it would be as great a violation 
of the rights of property to establish a contrary doctrine at the pre- 
sent day, as it would in the case of Africans, and as useless to investi- 
gate the manner in which they originally lost their freedom." The 
State vs. Waggoner, 1 Ilalstead^s Reports, 374-376. 

In addition to the laws already cited, declaring who shall be deemed 
slaves, the codes of the slave-holding states exhibit a considerable 
number of enactments, by which free negroes, &c. are converted into 
absolute slaves. Thus, in South Carolina, if a free negro harbour, con- 
ceal or ENTERTAIN a runaway slave, or a slave charged "with any 
criminal matter," he shall forfeit the sum of ten pounds currency for 
the first day, and twenty shillings for every succeeding day, &c. And 
in case such forfeitures cannot be levied, or such free negro, &c. shall 
not pay the same, together with the charges attending the prosecution, 
such FREE negro, &c. shall be ordered by the justice to be sold at public 
outcry, and the money arising by such sale shall, in the first place, be 
paid for and applied towards the forfeiture, &c. to the owner, &c. : and 
the overplus, if any, shall be paid by the said justice into the hands of the 
public treasurer,^ &c. 2 Brevard's Digest, 237, act of 1740. 

and open trade for all persons, at all times and at all places, with all Indians lohatso- 
ever, it was decided by the courts, that this operated as a repeal of the former acts." 
See 1 Hmning and Munford's Reports, 139. The descendants of such Indians as were 
reduced to slavery under the sanction of the acts of 1G79 and 1682, and during the 
time in which these were in force, may even at the present time be held as slaves in 
Virginia ! ! But the decisions of the court protect all others. The highest court of 
judicature has decided, that " a wa^u'e American Indian brought into Wrginia since 
the year 1691, could not lawfully be held in slavery there, although such Indian was 
a slave in the country (Jamaica) from which she had been brought, previously to 
and at the time of her removal." Butt vs. Rachel, 4 Munford's Reports, 209. See also 
2 Henning and Munford's Reports, 149, Pallas and others vs. Hill and others, in which 
cases the claim to freedom of at least tivelve descendants of native American Indians, 
whose maternal ancestors had not been reduced to slavery till after 1691, was esta- 
blished. 

* I have, in the text, considered the whole of the 34th section of the act of 1740 as 
the law of South Carolina at the present time. A very recent proceeding in one of the 
judicial tribunals of that state, is my justification for so doing. The subjoined ex- 
tract from the Charleston Courier of the 13th August, 1827, details the proceeding to 
which reference is here made :— " A trial of much interest took place on Saturday last, 
at the City Hall, before a court composed of John Micliel, Esq., Justice of the Quorum, 
and two Freeholders. The parties put upon their trial were Hannah Elliott, a free 
black woman, together with her daughter Judy, and her sons Simon and Sam. They 
were severally indicted under the act o/1740, for harbouring, concealing, entertaining 
two female children, aged about six and nine years, the property of a lady of this 
city, the extraordinary concealment and discovery of which was mentioned a short 
time since. 

"After a patient investigation of all the circumstances of the case, the prisoners 
having the aid of able counsel, the court found them all sruiltv, and sentenced them, 
in accordance with the provisions of the aforesaid act, as follows :— Hannah Elliott, 
with having harboured these slaves, for the term of two years; and her children with 



FREE MADE SLAVES. T 

So, "in case any slave shall be emancipated or set free, otherwise 
than according to the act (of 1800) regulating emancipations, it shall 
be lawful /or any person vShatsoever to seize and convert to his or her own 
use, and to keep as his or her property the said slave so illegally eman- 
cipated or set free." 2 Brevard's Digest, 256. 

And in Virginia, *<If* any emancipated slave (infants excepted) 
shall remain within the state more than twelve months after his or 
her right to freedom shall have accrued, he or she shall forfeit all such 
right, and may he apprehended and sold by the overseers of the poor, 
&c. for the benefit of the literaky fund ! !" 1 Rev. Code, 436, and 
see Const. o/1851. 

having harboured them respectively, for sixteen months each. The penalty undor 
the act is a forfeiture of ten pounds currency for i\iQ first day, and twenty shillings cur- 
rency for every day after, to the use of the owner of any slave so harboured, concealed 
or entertained. The act also provides, that in case the forfeiture cannot be levied 
on such free negro, together with the charges attending the prosecution, the parties 
must he sold at public outcry, and the money arising from such sale be applied, in 
the first place, towards the forfeiture due to the owner, &c, and the overplus, if any, 
be paid into the public treasury." 

Newspapers of later dates conlirm this statement, and inform us. what might natu- 
rally have been anticipated, that the unhappy convicts, being unable to satisfy the 
enormous penalties which had been imposed upou them, were sold at public outcry, 
ten days after the trial, for slaves during lite. 

But, notwithstanding this decision of the Charleston court, I have no doubt that 
the~act of 1740, so far as concerns the offence of free negroes, mnlattoes or mestizos, in 
harbouring, conceali7ig or entertaining a runaway slave, not charged with any criminal 
MATTER, is repealed. On the 20ih December, 1S21, the legislature of South Carolina 
enacted a law in these words : — -'If any free negro, mulatto or mestizo, shall harbour, 
conceal or entertain any fugitive or runaway slave, and be convicted thereof before 
tivo justices and five freeholders, he shall suffer such corporeal punishment, not extend- 
ing to life or limb, as the said justices and freeholders, who try such offender, shall 
in. their discretion think fit." See Acts of the Session of Dec. 1821, page 20 ; and James' 
Digest, 390. 

By comparing these two acts together, it will be perceived that they agree in the 
description of the oiiouce to be provided against, while they differ in two important 
particulars : first, as to the tribunal before which offenders against the law are to be 
tried: secondly, in the punishment to be inflicted on conviction. Under the act of 
1740, the tribunal consists of one justice and two freeholders, as is stated iu another 
section of the same act : and the act of 1821 expressly directs a tribunal composed of 
two justices and five freeholders. By the former act, two (a majority) members of the 
court can convict or acquit : according to the latter, four are necessary for either pur- 
pose. On the supposition that both acts are in force, the offender may be tried and 
punished tioice for one and the same offence — a conclusiou which is forbidden by a 
principal of criminal jurisprudence, which has no exception in the laws of any civil- 
ized country, namely, that " no man can be placed in peril of legal penalties more 
than once upon the same accusation." 1 Chitty's Criminal Law, 452; 4 />/«. Cum. 33.5. 
The provisions of the two acts are therefore manifestly inconsistent with each other, 
in which case, although words of express repeal are not used in the latter act, yet by 
implication it repealsthe former, the old statute always giving place to the new, where 
both cannot stand together. 1 Bl. Com. 89. See Rex vs. Cator, 4 Burr, 2026; and Fex 
t'S. Davis, Leach's Cases, 228 ; Dwarris on Statutes, 673-4. 

The only argument by which the position that both acts are in force can be maintained 
is, that the penalties are cumulative. This, however, can take place only where but 
one conviction is required; whereas, it has been shown above that two are necessary 
according to these acts, inasmuch as two distinct tribunals for trial are appointed. 

* The late President Jefferson, having by his last will emancipated five slaves, for 
whom he appears to have entertained much personal regard, in consequence of this 
section, made the following pathetic appeal to the legislature of his native State : — "I 
humbly and earnestly request of the legislature of Virginia, a confirmation of the be- 
quests to these servants, tuitti permission to remain in this State, where their families 
and connections are, as an additional instance of the favour of which I have_ received 
so many other manifestations in the course Of my life, and for which I now give them 
my solemn and dutiful thanks." 



8 FREE MADE SLAVES. 

In North Carolina he may Tbe sold by order of court, and the pro- 
ceeds be equally divided between the wardens for the poor and the 
informer. Statutes of North Carolina, 586. 

And see Laws of Florida, by which a free negro or mulatto, if con- 
victed of any crime or misdemeanour, the punishment of which shall 
not affect life or limb, if unable to pay the fine and costs of prosecu- 
tion, the sheriff shall offer his services at public sale ; "and any per- 
son who shall take such free negro or mulatto for the shortest period 
of time, paying the fine and costs of prosecution, shall be entitled to 
the services of such free negro or mulatto, who shall be held and 
taken for the said period of time as a slave to all intents and purposes 
whatever." Act of Feb. 10, 1832, Thompson's Digest, 542. 

It is obvious that in this way, although convicted of a misdemeanour 
only, and this so slight in the eye of law as to incur a mere fine, a free 
negro may become a slave to the end of his life. And so, in the same 
state, for the smallest debt contracted by a free negro or mulatto, he 
may become a slave by sale under execution against him. lb. 545-46. 

In Mississippi, every negro or mulatto found within the state, and 
not having the ability'^ to show himself entitled to freedom, may be sold, 
by order of the court, as a slave. Mississippi Rev. Code, 389. 

Maryland, in 1717, (chap. 13, sect. 5,) adopted these provisions: — 
*'If any free negro or mulatto intermarry with any white woman, or 
if any white man shall intermarry with any negro or mulatto woman, 
such negro or mulatto shall become a slave during life, except mulattoes 
born of white women, who, &c. shall become servants for seven years." 

Another copious source of slavery — the condemnation under laws 
of several of the slave-holding states, made specifically for this purpose, 
of natives of Africa, brought into the United States in violation of the 
act of Congress of March 2, 1807, entitled "An act to prohibit the 
importation of slaves, &c. from and after the first day of January, 
1808" — I shall defer the consideration of, to a subsequent chapter. 
See the Appendix, chap. 2. 

Before quitting this chapter, it may not be amiss to notice cursorily 
a species of servitude, (growing out of slavery,) which is peculiar, it 
is thought, to our country. It originated most probably in the pro- 
vince of Mai'yland, and will be readily apprehended from the subjoined 
extract from the act of that province in 1663, chap. 20, sect. 3 : — "All 
the ISSUE of English or other free-born women, that have already 
married negroes, shall serve the master of their parents till they be 
thirty years of age, and no longer." This act having been annulled 
in 1699 or 1700, was revived m principle by the act o/1715, chap. 44, 
sect. 26, with an extension of one year to the period of servitude fixed 
by the old law. The same provision shortly afterwards recommended 
itself to the general assembly of Pennsylvania,^ and may be found 

* The extreme hardship of this law will he seen when I come to treat of the exclu- 
sion of negroes, mulattoes, &c. as witnesses, where the interest of white persons is in 
question. 

1 1 have been careful to note with particularity the act of Assembly of Pennsylvania 
which pave rise to this species of servitude, chiefly because the late Judge Rush has 
inadvertently stated that usage Avas the authority upon which it was founded. See 
Respuhlica vs. Negro Betsey et al, 1 Dallas' Rep. 475. And this mistake has been followed 
ju a lecture before the Law Academy at the opening of the session of 1855-56, p. 22. 



THIRTY-ONE YEAHS' SLAVERY. 9 

• i-.n fnh 04. ^18 Hmposed a servitude for the same space ui umo 
™ the 'off.pringVf 'i 2te\om.n-scrvant and ane.ro »»'"«».» 

oftlieir parents;" and this species of servitude has, in that state, 
been accordingly abolished. 



CHAPTER 11. 

OF THE INCIDEKTS OF SLAVERY. • 



With the present chapter I propose to begin an elimination of the 

mil be proper, theretoie, ^S^fV^^ Elements of the Civil Laio, page 

^^ r" § A f' Thev had no head in the state, no name, title or re- 

the tilling of a slave became punishable. Dig ASS. Cooper s Jusimmnr 



10 ROMAN LAW. 

411. The JUS vitce ct necis claimed by the master, -was restrained by 
Claudius, the successor of Caligula. Ibid. The emperor Adrian pro- 
hibited generally cruel treatment towards slaves ; and he banished 
Umbriciii, a lady of quality, for five years, quod ex levissimis causis 
suas ancillas* atrocissime tractasset. Cooper's Justinian, 412. Anto- 
ninus Pius applied the lex Cornelia de sicariis, specifically to the masters 
of slaves ; and the same law was strengthened by Severus and by 
Constantine. Cooper's Justinian, 412. Slaves might always induce 
an investigation by flying to the statutes of the princes. Ibid. 

I believe it will be found, upon a close comparison, that the condi- 
tion of the slave, in our slave-holding states, so far as the law may be 
invoked in his behalf, is but little — if in any respect — better than was 
that of the Roman slave under the civil law. Take the following de- 
scription of slavery, as given by the Supreme Court of North Carolina 
in 1829 : — " The end (of slavery) is the profit of the master, his secu- 
rity, and the public safety. The subject is one doomed in his own 
person and his posterity to live without knowledge and without the 
capacity to make any thing his own, and to toil that another may reap 
the fruits. Such services can only be expected from one who has no 
will of his own ; who surrenders his will in implicit obedience to that 
of another. Such obedience is the consequence only of uncontrolled 
authority over the body. There is nothing else which can operate to 
produce the eflfect. The power of the master must be absolute to 
render the submission of the slave perfect. In the actual condition 
of things it must be so. There is no remedy. This discipline belongs 
te the state of slavery. They cannot be disunited without abrogating 
at once the rights of the master and absolving the slave from his sub- 
jection. It constitutes the curse of slavery to both the bond and free 
portions of our population ; but it is inherent in the relation of master 
and slave." The State vs. 3Iann, 2 Devereux Rep. 263, 2G6. 

The doctrine of South Carolina is equally strong. It is concentrated 
by Wardlaiv, J., in this single sentence : — " Every endeavour to extend 
to a slave positive rights is an attempt to reconcile inherent contradic- 
tions; for, in the very nature of things, he is subject to despotism." 
Ex parte Boyleton, 2 Strobhart, 41. He gives this as a quotation 
from Kinloch vs. Harvey, Harper's Rep. 514, with the commendation, 
"as is rcell said." 

According to the law of Louisiana, "a slave is one who is in the 
power of a master to whom he belongs. The master may sell him, 
dispose of his person, his industry, and his labour; he can do nothing, 
possess nothing, nor acquire any thing, but what must belong to his 
master." Civil Code, art. 35. As to the master's power to punish his 
slave, a limitation seems to be contemplated by the following article :— 
" The slave is entirely subject to the will of his master, who may cor- 
rect and chastise him, though not with unusual rigour, or so as to maim 
or mutilate him, or to expose him to the danger of loss of life, or to cause 
his death."— Art. 178. Yet, as will be fully demonstrated hereafter, 
no such limitation actually exists, or can by law be enforced. 

With respect to the other slave-holding states, as none of these have 

* Because for very slight causes she had treated her female slaves very cruelly. 



SLAVES ARE THINGS. 11 

adopted entire written codes, enunciations of sucli a general nature as 
are exhibited in the quotations just made from the law of Louisiana 
are not to be expected. Nevertheless, the cardinal principle of slavery 
— that the slave is to be regarded as a thing, - — is an article of pro- 
perty, — a chattel personal, — obtains as undoubted law in all of these 
states. In South Carolina it is expressed in the following language : 
— " Slaves shall be deemed, sold, taken, reputed and adjudged in law 
to be chattels personalf in the hands of their owners and possessors, 
and their executors, administrators and assigns, to all intents, construc- 
tions and purposes tvhatsoever.'^ 2 Brev. Digest, 229 ; Prince's Dig€st,44^Q, 
^c. ^c; Thompson's Digest, 183. The law is now the same in Arkansas, 

* An apt illustration of this doctrine is presented in an act of Maryland, of 1798, 
Chap. CI. eh. 12, No. 12. The following is the langxiage of this enlightened state: — 
" In case the personal property of a ward shall consist of specific articles, such as 

SLAVES, WORKING BEASTS, ANIMALS OF ANY KIND, StOck, furniture, plate, bOokS. AND SO 

FOKTH, the court, if it shall deem it advantageous for the ward, may at any time pass 
an order for the sale thereof," &c. &c. See note. A, post, 296. 

f In Louisiana, " Slaves, though movable by their nature," says the civil code, "are 
considered as immovable by the operation of the law." — Art. 461. And by act of As- 
sembly of June 7, 1806, " Slaves shall always be reputed and considered real estate ; 
shall be, as such, subject to be mortgaged, according to the rules prescribed by law 
and they shall be seized and sold as i-cal estate." 1 3fartin's Digest, 612. And in 
Kentucky, by the law of descents, they are considered real estate, 2 Litt. and Swi. Digest, 
1155, and pass in consequence to heirs and not to executors. They are, however, liable 
as cJiattels to be sold by the master at his pleasure, and may be taken in execution for 
the payment of his debts. Ibid. ; and see 1247. A law (act of 1705) similar to that of 
Kentucky once obtained in Virginia, but it was repealed after a short experiment. 
See note to 1 Eev. Code, 432. 

In Massachusetts and Connecticut, and probably in the whole country which used 
to bear the name of New England, the Jmrsli features of slavery were never known. 
In Massachusetts colony, so early as in the year of our Lord one thousand six hun- 
dred and forty-one, the following law was made : — " It is ordered by this court and the 
authority thereof, that there shall never be any bond slavery, villenage or captivity 
among us, unless it be lawful captives taken in just war, (such) as willingly sell them- 
selves or are sold to us; and such shall Jiave tfie liberties and Chrisiiav itsage ivhich 
the law of GOD established in Israel concerning such persons doth morally require." 
See General Laws and Liberties of Massacliusetts Bay, chap. 12, sect. 2. Though the 
phraseology of this law savour more of Hibernia than is supposed to be common \o New 
England, yet its meaning is sutHciently palpable. That the law was not a dead letter, 
we have the authority which may be collected from an opinion delivered in the case 
of Winchendtn vs. Hatfield, 4 Mass. Hep. 127-8, by Chief-Justice Parsons. " Slavery," 
says he, *' was introduced into this country soon after its tirst settlement. The slave 
was the property of the master, subject to his orders, and to reasonable correction for 
misbehaviour. If the master was guilty of a cruel or unreasonable castigation of his 
slave, he was liable to be punished/or t/ie breach of the peace, and, I believe, the slave 
was allowed to demand sureties of the peace against a violent and barbarous master. 
Under these regulations, the treatment of slaves was in general mild and humane, 
and they suffered hardships not greater than hired servants." 

And in Connecticut, Judge Reeve, speaking of slavery there, holds this language : — 
'• The law, as heretofore practised in this state, respecting slaves, must now be unin- 
teresting. I will, however, lest the slavery which prevailed in this state should be 
forgotten, mention some things, that show that slavery here was very far from being 
of the absolute, rigid kind. The master had no control over the life of his slave. If 
he killed him, he was liable to the same punishment as if he killed a freeman. The 
master was as liable to be sued by the slave, in an action for beating or wounding, or 
for immoderate chastisement, as he would be if he had thus treated an apprentice. A 
slave was capable of holding property, in character of devisee or legatee. If the 
master should take away such property, his slave would be entitled to an action 
against him, by his prochein ami, (next friend.) From the whole we see that slaves 
had the same right of life and property as apprentices ; and that the difference betwixt 
them was this : an apprentice is a servant for time, and the slare is a servant for lilfe." 
Reeve's Law <^ Baron d. Fernme, t£c. 340-41. 



12 SLAVES ARE THINGS. 

although for a time slaves there were regarded as real estate. English'' a 
Digest, 944, Absolute despotism needs not a more comprehensive grant 
of power than that which is here conferred. And though the parti- 
cular design of the law-makers in framing this section was merely to 
declare of what nature — whether real or personal estate — slaves as 
property should be regarded, yet it is not on that account the less 
appropriate for the purpose to which I apply it. It is strictly conso- 
nant with an inflexible principle of their acknowledged law. 

Viewing the language, " that a slave shall be deemed a chattel personal 
in the hands of his owner, to all intents, constructions and purposes ivhat- 
soever,^' in this light, it is plain that the dominion of the master is as 
unlimited as is that which is tolerated by the laws of any civilized 
country in relation to brute animals, — to quadrupeds, to use the words 
of the civil law. How far the existing state of slavery, as by laiv esta- 
blished and protMed, may conform to this deduction, will best appear 
by a more minute investigation of the subject. And in order to sim- 
plify the inquiry, and to enable the reader to arrive at a proper con- 
clusion without difficulty, I shall subjoin, in distinct propositions,what 
will be found to be corollaries from the act of South Carolina ; and, in 
connection with each of them, such laws as may be specifically appli- 
cable will be quoted, and their just bearing indicated. 

Prop. I. — The master may determine the kind, and degree, and time 
of labour to which the slave shall be subjected. 
II. — The master may supply the slave with such food and 
clothing only, both as to quantity and quality, as he 
may think proper or find convenient. 
in. — The master may, at his discretion, inflict any punish- 
ment upon the person of his slave. 
IV. — All the power of the master over his* slave may be exer- 
cised not by himself only in person, but by any one 
whom he may depute as his agent. 
V. — Slaves have no legal rights of property in things, real or 
personal ; but whatever they may acquire belongs, in 
point oflato, to their masters. 
VI.— The slave, being ^personal chattel, is at all times liable to 
be sold absolutely, or mortgaged or leased, at the will 
of his master. 
"^^11-— He may also be sold by process of law for the satisfaction 
of the debts of a living or the debts and bequests of a 
deceased master, at the suit of creditors or legatees. 
VIII.— A slave cannot be a party before a judicial tribunal, in 
any species of action against his master, no matter 
how atrocious may have been the injury received from 
him. 
IX.— Slaves cannot redeem themselves, nor obtain a change of 
masters, though cruel treatment may have rendered 
such change necessary for their personal safety. 
A.— Slaves being objects of property, if injured by third per- 
sons, their owners may bring suit, and recover damages, 
for the injury. ^ • 



AMOUNT OF LABOUR. 18 

Prop. XI. — Slaves can make no contract. 

XII. — Slavery is hereditary and perpetual. 

Preparatively to tlie separate discussion of the above propositions, 
the remark may be made, as applicable to each, that the absence of a 
legislative change as to the law of the proposition is always to be 
taken as an implication that it exists as is therein stated. For the 
propositions, it will be recollected, are corollaries from the express 
general law. 

Prop. I. — The master may determine the kind, and degree, 

AND TIME OP LABOUR TO WHICH THE SLAVE SHALL BE SUBJECTED. 

In most of the slave-holding states the law is silent on this topic. 
There can be no doubt,* therefore, as I have just intimated, that it is 
given correctly in the terms of the proposition. As to the silence of 
the law, the codes of Georgia, South Carolina, Loiiisiana and Missis- 
sippi furnish exceptions; with what efficacy, will be shown in the 
succeeding observations. One of these exceptions is as follows: — 

"If any person shall on the Lord's day, commonly called Sunday, 
employ any slave in any work or labour, (works of absolute necessity 
and the necessary occasions of the family only excepted, ) every person 
so offending shall forfeit and pay the sum of ten shillings for every 
slave he, she or they shall so cause to work or labour." Act of May 
10,1770; Princess Digest, Abb; 2 Cobb's Digest, ^'^1. So in Mississippi, 
under a penalty of two dollars. Eev, Code, 317 ; Act of June 13, 18ii2. 
And in Arkansas the penalty is one dollar. EnglisKs Digest, 369. 

"Any owner or employer of a slave or slaves, who shall cruelly 
treat such slave or slaves, by unnecessary or excessive whipping, by 
withholding proper food and sustenance, by requiring greater labour 
from such slave or slaves than he or she or they are able to perform, 
or by not affording proper clothing, whereby the health of such slave 
or slaves may be injured and impaired, or cause or permit the same to 
be done, every such owner or employer shall be guilty of a misde- 
meanour, and on conviction shall be punished by fine or imprison- 
ment in the common jail of the county, or both, at the discretion of 
the court." Act of 1833, 2 CobVs Digest, 827. 

The ostensible design of these laws is to afford protection to the 
slave. But, unfortunately for the oppressed, a single fact proves that 
the ^^ promised good'^ is almost, if not altogether, illusory. It is an 
inflexible and universal rule of slave law, (to which more particular 
attention will be hereafter given,) founded in one or two states upon 
usage, in others sanctioned by express legislation, that the testi- 
mony OF a coloured person, whether bond or free, cannot be 
received against a white person ! ! ! It is scarcely necessary to 
add another word to substantiate the allegation, that these laws of 
Georgia ought to be considered entirely and unqualifiedly nugatory. 

* a strong illustration of this remark ia supplied by the folio-wing decision of the 
Supreme Court o? Alabama. " The master or owner, and not the slave, is the proper 
judge whether the slave is too sicJc to be able to labour. The slave cannot therefore 
resist the order of the master, or owner, to go to work." Slate vs. Abram, 10 Ala^ 
lama Eep. 928. 

o 



14 AMOUNT Ot LABOUR. 

By way of illustration, however, suppose a slave, 5v the command of 
his master, and through terror of his displeasure and punishment, is 
discovered on the Sabbath, employed in the ordinary labours of the 
field. It may be assumed that the master is apprised of the pro- 
hibition of the law. He knows equally well, too, that the testimony of a 
white man only can be produced against him. He will, of course, obey 
the dictate of common prudence, — a sufficient share of which, for this 
purpose, every man possesses, — and issue his commands to the slave in 
the absence of a tvhite man. How, then, can he be convicted of this 
offence ? or in what manner can the law be enforced ? It must be a 
dead letter. It can serve no valuable end. For any benefit it yields 
the slave, it might as well not have been passed. 

The same objections apply to the clause in the second section which 
has been cited, and which comes within the scope of the proposition 
under present consideration, i. e. "the requiring greater labour fi'om 
such slave or slaves than he, she or they are able to perform." In- 
deed, the difficulty in effecting a conviction is increased, inasmuch as 
the charge is by the law of a criminal natur,' — every thing must there- 
fore be strictly proved — the law itself must be coHstrucd strictly — and 
such a construction requires that the two other illegal circumstances 
enumerated in the section — to ivit, unnecessary and excessive whipping, 
— withholding j^pro/jer food arid sustenance — should exist at the same 
time, and be proved against the master, to constitute the single crime 
of cruelty to the slave. 

There is an obscurity and confusion in the penning of this laAV, 
which will strike every one with surprise, who is not in some degree 
acquainted with slave laws. There is an omission, too, which deserves 
notice. The cruelty of the owner, only, is made penal in the section ; 
while the exaction of too much labour, &c., by the overseer or ageiit, 
is not provided against. 

The negro act of South Carolina, passed in 1740, contains the fol- 
lowing language as restrictive of the master's poAver in the exaction 
of labour from the slave. I copy, in addition to the enacting part of 
the section, the preamble, since it serves to evidence the abuse which 
obtained in this particular, at a very early period, when the labour 
of the slave was probably of much less value than it is at the present 
time. "Whereas many owners of slaves, and others who have the 
care, management and overseeing of slaves, do confine them so closely 
to hard labour, that they have not svjficient time for natural rest: Be it 
therefore enacted. That if any owner of slaves, or other person who 
shall have the care, management or overseeing of any slaves, shall 
work or put any such slave or slaves to labour more ihtm fifteen hours 
in twenty-four hours, from the twenty-fifth day of March to the 
twenty-fifth day of September ; or more i\i^n fourteeyi hours in twenty- 
four hours, from the twenty-fifth day of September to the tAventy-fiftla 
day of March, every such person shall forfeit any sum not exceeding 
twenty pounds, nor under five pounds, current money, for every time 
he, she or they shall offend herein, at the discretion of the justice 
before whom the complaint shall be made." 2 Brevard's Digest, 
243. 

In Louisiana, the subjoined act was passed, July 7, 1806. "As for 



AMOUNT OF LABOUR. 15 

the hours of work and rest, -which are to be assigned to slaves in sum- 
mer and winter, the old usages of the territory shall be adhered to, to 
wit : The slaves shall be allowed half an hour for breakfast during the 
whole year ; from the first day of May to the first day of November, 
they shall be allowed two hours for dinner ; and from the first day of 
November to the first day of May, one hour and a half for dinner ; 
Provided, however. That the owners who will themselves take the 
trouble of causing to be prepared the meals of their slaves, be and 
they are hereby authorized to abridge, by half an hour per day, the 
time fixed for their rest." 1 3Iariin's Digest, 610-12. 

The remarks which were made, in relation to the laws of Georgia, 
bear with equal force upon those of South Carolina and Louisiana, 
above cited. They are wholly inoperative, incapable of being exe- 
cuted, and must, without doubt, give way to the cupidity of the mas- 
ter, whenever circumstances excite the passion for gain. But to 
speak of the law of South Carolina : suppose it to be religiously ob- 
served ; is not the measure as to the length of time (for as regards the 
kind or degree of labour no regulation exists, and it would be futile to 
make any) excessive, and likely to destroy bodily energy ? In a mat- 
ter of this nature, exact graduation is not easily attainable ; yet, 
judging from such data as I have been able to collect, I think myself 
authorized in the conclusion that too much is permitted. In the island 
of Jamaica, besides many holidays which are by law accorded to the 
slave, ten hours a day is the extent of the time which the slave is 
compelled ordinarily to work. See 2 Edwards's West Indies, hook 4, 
chap. 5. Also, Consolidated Slave Act of Jamaica, ibid, book 4 ; Ap- 
pendix, section 18. The regulations of penitentiaries, in reference to 
the employment of convicts at hard labour, furnish additional criteria 
deserving of our attention. And, happily, it is in my power here to 
adduce the authoi'ity of at least three slave-holding states, viz. : 
Maryland, Virginia and Georgia, in conjunction with that of Penn- 
sylvania and New Jersey. In each of these states this law has been 
adopted : — " Such ofi"enders (convicts) unless prevented by ill health, 
shall be employed in work every day in the year except Sundays and 
such days when they shall be confined in the solitary cells ; and the 
hours of work, in each day, shall be as many as the season of the 
year, with an interval of half an hour for breakfast and an hour for 
dinner, will permit ; but not exceeding eight hours in the months of No- 
vember, December and January ; nine hours in the months of February 
and October, and ten hours in the rest of the year," 1 Virg. Rev. Code, 
624 ; Prince's Digest, 382 ; Laws of Maryland, Nov. Sess. 1809, ch. 138, 
§ 30; Laivs of New Jersey, revised and published in IS21, page 326; 
Pardon's Digest of the Laws of Pennsylvania, page 324, [act of April 5, 
1790.) 

Hence it appears, that according to a statute which was enacted 
upon the most solemn deliberation by one legislature, and which has 
been adopted since by four other distinct bodies of the same nature, 
ten hours make up the longest space out of twenty-four hours, which can 
be demanded for labour from convicted felons, whose punishment was 
designed to consist chiefly of hard labour. Yet the slave of South 
• Carolina, under a law professing to extend humanity towards him, may 



16 FOOD AND CLOTHING. 

be subjected to unremitting toil fot fifteen hours "within the same 
period ! ! 

If we turn to Louisiana, the condition of the slave, in this parti- 
cular, will be found without melioration. For, though the purpose 
of the act which I have transcribed is declared to be to ascertain 
what hours are to be assigned to the slave for work and rest, the 
only rest which it provides is half an hour at breakfast and two hours 
at dinner. At what time a third meal is to be taken, whether at sun- 
set or at midnight, is left to the master's pleasure. And, judging 
from our knowledge of the mode in which sugar is made, and cotton 
raised and pressed, it is not too much to say, that the going down of 
the sun is by no means the signal of repose to the weary slave. "^^ 
And let it not be forgotten that the slave, within the short time 
allotted for rest, is under the necessity of preparing food for his 
meals ! ! 

Prop. II. — The master may supply the slave with such food 

AND CLOTHINa ONLY, BOTH AS TO QUANTITY AND QUALITY, AS HE 
MAY THINK PROPER OR FIND CONVENIENT. 

Legislation having a direct reference to the subject of this proposi- 
tion may bo quoted from the codes of Louisiana and of North and 
South Carolina. Still, as the slave is entirely under the control of 
his master — is unprovided with a protector — and especially as ho 
cannot be a witness, or make complaint in any known mode against 
his master, the apparent object of these laws may always be defeated. 
I might, therefore, spare myself any further attention to this proposi- 
tion. But, for the information of those who have not resided in a 
slave state, I think fit to copy the authentic testiniony of acts of as- 
sembly, as to the quantity and quality of food which are directed to be 
provided for slaves. Thus in Louisiana, "Every oAvner shall be held 
to give to his slaves the quantity of provisions hereafter specified, ta 
wit: one barrel of Indian corn, or the equivalent thereof in rice, beans 
or other grain, and a pint of salt, and to deliver the same to tlie said 
slaves in kind every month, and never in money, under a penalty of a 
fine of ten dollars for every olFence." 1 Martin's JJiyest, GIG, act of 
July 7, 180G ; Revised Statutes, p. 522. In North Carolina a much 
less quantity of the same kind of food is deemed sufficient, as is im- 
plied from the following curious section of an act passed in 1753, and 
which is still in force: — "In case any slave or slaves, who shall not 
appear to have been clothed and fed, [according to the intent and 
meaning of this act, that is to say, to have been sufficiently clothed, 
and to have constantly received for the preceding year an allowance 

* An extract from a Louisiana newspaper, dated New Orleans, March 23, 1826, will 
tend in some measure to confirm this renuirk. The words are these :— "To jud^e from 
the activity rei^ninf^ in the cotton-presses of the suburbs of St. Mary, and the late 
hours durinp; which tfieir slaves woric, the oAton trade was never more brisk." Sugar- 
making is, 1 believe, generally more laborious than the cultivation of cotton. In an 
article on the a^^riculture of Louisiana, contained in "The Western Review," No. 2, 
(the editor of which is by no means unfrivonrable to slavery.) the following .-statement 
appears:— "T//e %vorlc (suj^'ar-making) i.v admiUed to he severe for the hands, {shixoH,) 
requiring, wlien the process of maldng sugar is commenced, to be miessed niout and 

DAY." 



FOOD AND CLOTHING. 17 

not less than a quart of corn per day,''^'\ shall be convicted of steal- 
ing any corn, cattle, &c. &c. from any person not the owner of such 
slave or slaves, such injured person shall and may maintain an action 
of trespass against the master, owner, or possessor of such slave, &c., 
and shall recover his or her damages, &c." 110.1/1000(1,' s Manual, 524-5. 
In ihe Revised Statutes of 1836-37,^. 578, the part of this section 
which is contained within brackets is not found. In lieu thereof, the 
yiovd properly is insei'ted before clothed. 

The allowance of clothing in Louisiana seems to have been graduated 
by the same standard by which the quantity of food was determined 
in North Carolina. " The slave who shall not have on the property 
of their owners a lot of ground to cultivate on their own account, shall 
be entitled to receive from said owner one linen shirt and pantaloons 
[line chemise et una culotte de toile) for the summer, and a linen shirt 
and woollen great-coat and pantaloons for the winter." 1 Martin's 
Digest, 610; Revised Statutes of 18o2, p. 522. 

The other slave-holding states do not pretend to fix the kind and 
quantity of food and clothing to be furnished to the slave ; but in 
South Carolina and in Georgia the cruelty of denying to him a sufficiency 
of either is attempted to be guarded against. That full justice may bo 
done to the humanity of the lawgivers of South Carolina, I extract a 
section of the law which professes to give redi-ess to the injured slave : 
— " In case any person, &c. who shall be owner, or who shall have the 
care, government or charge of any slave or slaves, shall deny, neglect 
or refuse to allow such slave or slaves under his or her charge suffi- 
cient clothing, covering or food, it shall and may be lawful for any 
person or persons, on behalf of such slave or slaves, to make complaint 
to the next neighbouring justice in the parish where such slave or 
slaves live, or are usually employed ; and the said justice shall summon 
the party against whom such complaint shall be made, and shall in- 
quire of, hear and determine the same ; and, if the said justice shall 
find said complaint to be true, or that such person will not exculpate 
or clear himself from the charge, by his or her own oath, which such 
person shall be at liberty to do in all cases where positive proof is not 
given of the offence, such justice shall and may make such orders 
upon the same, for the relief of such slave or slaves, as he in his dis- 
cretion shall think fit; and shall and may set and impose a fine or 
penalty on any person who shall offend in the premises, in any sum 
not exceeding twenty pounds, current money, for each offence, to be 
levied by warrant of distress and sale of the offender's goods," &c. &c. 
2 Brevard's Digest, 241 ; similar in Louisiana, 1 Martinis Digest, 638 
-40 ; Revised Statutes, 557. 

Now, as the slave cannot be heard as a witness, it is not very easy 
to see hovr positive proof as to the insufficiency of food can be obtained ; 
and, of course, by the terms of the act, the master or overseer, by his 
oath, may exculpate himself — may answer the general charge by as 

* In an action between an overseer and his employer, in South Carolina, the 
counsel of the overseer is reported to have used this language, speaking of the em- 
ployer, who was the defendant. "lie gauged his (the plaintiff's) and his family's 
stomachs very closely — a peck of corn for each white person '.—just a negro's alloW' 
ance." Davis vs. Whitbridge, 2 Strobhart, 236. The time here referred to was a toeek. 

2* 



18 FOOD AND CLOTHING. 

general a denial — a matter wliich au intrepid conscience, as all expe- 
rience testifies, will easily compass. 

To what a degree of suffering slaves may be reduced, notwithstand- 
ing the provisions of this law, the facts stated in a decision of the 
South Carolina Reports as recently as 1848 give painful assurance. 

A complaint under this section of the act of 1740 was made against 
the owner of twenty-one slaves for not supplying them with sufficient 
food and clothing. The magistrate decided against the owner, and 
imposed the statutory penalty. The owner appealed from the magis- 
trate's order, and the case was thus brought before the Supreme Court. 
In the report of the case, this relation is made, which I give verbatim : — 
*'The defendant did not give his negroes enough even of meal, — the 
only jjrovisions which he did give them. Five bushels of meal weekly, the 
LARGEST quantity stated by any witness, even if not reduced in the 
ratio of three-eighths of a bushel in two bushels, to the standard of 
the defendant's measure, was plainly insufficient for a family of eight 
whites and twenty-one slaves. But it appears by the testimony of 
Jackson, the defendant's overseer, that this supply was not regular. 
The grown negroes had only a quart of meal a day. Many days he 
says they had no meal. Sometimes it gave out on Thursday and some- 
times on Friday. They would then have a quart to last them till 
Monday evening. The stinted alloivance, xvhen withheld, must have reduced 
the wretched slaves to fami7ie. For seventeen months, Jackson did not 
know that shoes had been given to them. Their feet were frostbitten 
and sore. During the same period no clothes were given to them." 
State vs. Bowen, 3 Strobhart^s Reports, pp. 674, 575. 

Here positive evidence was obtained by the oath of the overseer ; 
otherwise the defendant might have exculpated himself by his own 
oath, which, as he resisted the enforcement of the law until the court 
in the last resort had decided against him, there is too much reason to 
believe he would have done. But that the overseer was led to testify, 
it is not likely any relief could have been had by the starviiig slaves. 

The act of Georgia remains to be considered. It will be seen by 
recurring to the latter section of the law of this state, upon which I 
adventured a brief comment while speaking of the first proposition of 
this chapter, that among the constituents of the crime of cruelty by the 
master to his slave, are enumerated " the withholding proper food and 
sustena7ice," and "7iot affording proper clothing." For "withholding 
proper food and sustenance," it has been demonstrated, I trust, that 
the master is dispunishable. The proof cannot be had. Whether the 
slave be properly clothed may, however, be ascertained by inspection. 
But the enumerated circumstances of inhumanity — ''unnecessary or 
excessive tchipping," — " tvithholding proper food,"" — ''exacting more labour 
than the slave is able to perform,'' — "not affording proper clothing'' — are 
neither severally nor aggregately a punishable offence ; there must be 
superadded, both in fact and proof, the effect "whereby"— these are the 
words of the statute — "the health of such slave or slaves may be injured 
and impaired" ! ! It is, therefore, only in such extreme cases of suf- 
fering that the legislative penalty can be imposed. 

_ Upon the topics of this proposition, another act of Georgia may be 
cited, the provisiojis of which are of a character so novel, that I shall 



FOOD AND CLOTHING. 19 

be under the necessity of detaining the reader longer in its discussion 
than is altogether consistent with the plan of this sketch. The act is 
a brief one, and I transcribe it entire : ''Section 1. From and after the 
passing of this act, (December 12, 1815,) it shall be the duty of the 
inferior courts of the several counties in this state, on receiving informa- 
tion, on oath, of any infirm slave or slaves being in a suffering situa- 
tion, from the neglect of the oxoner or owners of such slave or slaves, to 
make particular inquiries into the situation of such slave or slaves, 
and render such relief as they in their discretion may think proper. 

'^ Section 2. The said courts rnag, and they are hereby authorized, 
to sue for and recover from the owner or owners of such slave or slaves, 
the amount that may be appropriated for the relief of such slave or 
slaves, in any court having jurisdiction of the same; any law, usage 
or custom to the contrary notwithstanding," Priiice's Digest, 460; 2 
Cobb's Digest, 987. 

By the terms of this act, the relief spoken of is confined to infirm 
slaves. The purpose of this restriction I cannot perceive. It is un- 
necessary, however, to trouble ourselves with the inquiry, since to the 
professed objects of its bounty it is scarcely possible a benefit can result. 
As a preliminary to judicial investigation, the express directions of the 
first section require information to be given to the inferior judges 07i 
oath. I need not repeat that this must be the oath of a ichite man. A 
flagrant case it must be, it will occur to every reflecting mind, which 
will induce such a person to incur the enmity of a planter, by making 
a formal complaint, on oath, before the judges of the court, that "aw 
infirm slave is in a suffering condition from the neglect of his owner." But 
let it be granted that such complaint has been preferred by a compe- 
tent person; it is, it will be observed, but an incipient proceeding, and, 
without the inadmissible evidence of the slave himself, how can the 
other requirements of the act be complied with ? What kind of replies 
can be expected to the '■'particular inquiries" which the judges are 
directed to make ? The charge is a grave one ; it strikes at the cha- 
racter of the master: the evidence to support it should be proportion- 
ately cogent ; it should be incontrovertible. 

Improbable as I think I have shown the supposition to be, let it be 
further granted that the complaint has been established by evidence 
satisfactory to the judges, and that, in conformity with the directions 
of the act, they have proceeded to "render such relief as they, in their 
discretion, have thought proper," 

If the reader be in any degree conversant with judicial proceedings, 
he will be apt to conclude that this latter concession is an abandonment 
of the argument. And, truly, had the law under examination been 
founded on practical principles, — had it been framed, as all laws ought 
to be, to answer the behests of justice, — the concession would be open 
to this objection. Yet, unwilling as we may be to believe the reproach, 
it is impossible to shut out the conviction that the makers of the act 
did not design it to be efficient; othewise, the ^ecorir/ section would not 
have been appended. This section gives to the act, as has been before 
observed, a character altogether novel in jurisprudence. By ih.Q first 
section, it will be recollected, the dutg is imposed on the judges of the 
inferior courts, after having made "particular inquiries into the situa- 



20 PUNISHMENT. 

tion of the suffering slave," to render such relief as they should think fit. 
One would naturally infer that, after a judicial tribunal had solemnly 
adjudged ^^ relief to be necessary for an infirm slave in a suffeeing con- 
dition from the neglect of his owner,'" the hand of justice -would not 
be tardy to enforce the decision. Very different, however, were the 
sentiments of the humane legislature of Georgia. No relief is admi- 
nistered. The duty of the judges is at an end by the determination that 
relief is necessary ! They cannot order an execution upon their judg- 
ment. The harvest should have been ready for the sickle ; but the seed 
has not been sown — the ground is not even prepared to receive it. The 
judges are authorized (not commanded) to assume the unheard-of cha- 
ractei", for judges, of becoming suitors in another court, — "to sue for," 
says the second section, "and recover from the owner or owners of such 
slave or slaves, the amount that may be appropriated for the relief of 
such slave." No special provision is made for the payment of costs, in 
case these plaintiff judges should, from defect of evidence, or from any 
other cause, be unable to convince the ulterior court and jury that re- 
lief should be afforded. It results, of course, that they must defray 
them from their private resources, like all other unsuccessful parties 
to an action. The delay and uncertainty of the law, even in its ordinary 
mode of administration, where every reasonable facility for investiga- 
tion is accorded, are proverbial; is it to be expected, then, with the 
obstacles to the execution of this act which have been pointed out, — the 
exclusion of slave testimony when no other testimony would be likely 
to disclose the necessary facts — the preferment of the complaint before 
one set of judges whose decision, at most, leads to no other result than 
that these judges may become suitors in the cause before another dis- 
tinct judicial tribunal, with the certain inconvenience of loss of time, 
and the almost certain loss of money, — that a suit should ever be ter- 
minated, or that it should be terminated in favour of the slave ? 
Legislation such as this is woi'se than mockery. 

Prop. III. — The master may, at his discretion, inflict any spe- 
cies OF punishment upon the person of his slave. 

If the power of the master to the extent here implied were sanc- 
tioned by express law, we should have no claim to the character of a 
civilized people. The very being of the slave would be in the hands 
of the master. Such is not the case ; on the contrary, from the laws 
which I shall cite, it will be fully evident that, so far as regards the 
pages of the statute-book, the life at least of the slave is safe from the 
authorized violence of the master. The evil is not that laws are want- 
ing, but that they cannot be enforced ; not that they sanction crime, 
but that they do not punish it. And this arises chiefly, if not solely, 
from the cause which has been more than once mentioned, — the exclu- 
sion of the testimony, on the trial of a white person, of all those who 
are not white. 

There was a time when, in all the old states in which slavery is still 
maintained, the murder of a slave, whether by his master or a third 
person, was punished by a pecuniary fine only. South Carolina was 
the last of these states in which a change in this particular was made. 
Since then (Dec. 20, 1821) the ivilful, malicious and premeditated killing 



MURDER OF A SLAVE. 21 

of a slave, by whomsoever perpetrated, is a capital oflfence^' iu all the 
slave-holding states. 

* Although it is strictly correct, as stated in the text, that the wUfid, malicious 
and premeditated killing of a slave is a capital offence in all the slave-holding states, 
yet iu several of these states the sulyect has occasioned much difficulty. Thus, iu 
Virginia, even since the adoption of the distinction between the degrees of murder, 
on three occasions at least the legislature has defined murder in the first degree in 
such language as to show a variation of purpose to some extent at each particular 
time. Thus, by the revised code of 1819, '= all murder which shall be perpetrated by 
means of poison, or by lying in wait, or by duress of imprisonment or confinement, or 
by starving, or hy toilful, malicious and excessive ivhipinng, beating or other cruel 
treatment or torture, or by any other kind of wilful, deliberate and premeditated 
killing, or which shall be committed in the perpetration or attempt to perpetrate any 
arson, rape, robbery or burglary, shall henceforth be deemed murder in the first 
degree." 1 Rev. Code, (of 1819,) p. 616. 

In 1847-48, the words are, " Murder committed by poison, lying in wait, duress of 
imprisonment, starving, wilful and excessive whipping, cruel treatment, or any kind 
of wilful, deliberate and premeditated killing, or in the attempt to commit any arson, 
rape, robbery or burglary, shall be murder iu the first degree." 

"What is denominated "T/ie Code of Virginia^' is a very condensed body of statutable 
law, published under an act of Assembly of August 15, 1849, Avhich did not, how- 
ever, take effect until the 1st of July, 1850. The definition of murder of the first 
degree, according to this code, is "Murder by poison, lying in wait, imprisonment, 
starving, or any wilful, deliberate and premeditated killing, or in the commission or 
attempt to commit arson, rape, robbery or burglary." Code of Virginia of 1849, p. 
723. 

It will be observed that this last enactment leaves out '' wilful, vialicimis and ex- 
cessive whipping, heating or other cruel treatment or torture," contained in the act of 
1819, and "wilful and excessive whiiiping, cruel treatment" of the act of 1847. 

It is a remarkable fact that on September 1, 1849, whilst the act of 1847 was yet in 
force, one of the most, if not the most, wilful, malicious and deliberate murders was 
committed by the master of a slave, by wilful and excessive whipping aivL a-uel treat- 
ment, which the criminal records of any country have transmitted. The case ia 
reported in 7 Grattan^s Reports, 679, under the name of Souther's case. The opinion 
of the court gives this narrative: — "The indictment contains fifteen counts, and sets 
forth a case of most cruel and excessive whipping and torture. The negro was tied 
to a tree and whipped with switches. When Souther became fatigued with the 
labour of whipping, he called upon a negro man of his and made him cob Sam with 
a shingle. lie also made a negro woman of his help to cob him. And, after cobbing 
and whipping, he applied fire to the body of his slave, about his back, belly and pri- 
vate parts. lie then caused him to be washed down with hot water in which pods 
of red pepper had been steeped. The negro was also tied to a log, and to the bed- 
post, with ropes, which choked him, and he was kicked and stamped by Souther. 
This sort of punishment was continued and repeated until the negro died under its' 
infliction." 

The slave's offences, according to the master's allegation, were, '^' getting drunl;" 
and dealing with two persons, — ivhite men, — who were present, and witnessed the 
whole of the horrible transaction, without, as far as appears in the report, having 
interfered iu any way to save the life of the slave. 

The jury found the master guilty of murder in the secortd degree. The court ex- 
pressed a clear opinion that it was murder in the rmsT degree, under the act of 
1817. What would have been held to be the proper verdict, had the existing law, in 
which '■'■wilfid and excessive whipping," &c. are left out, been then in force, is very 
doubtful. 

The language of the Revised Statutes of North Carolina, of 18-36-37, ch. 34, ? 9, p. 
192, is this: — ''The offence of killing a slave shall be denominated and considered 
homicide, and shall partake of the same degree of guilt, when accompanied with the 
lil.e circumstances, that homicide doe^ at common law." 

The common reader would naturally conclude from this provision that, if a master 
should whip his slave to death, the denomination of the crime would be murder, and 
the punishment capital. This would be a mistake. For, by the common latv, 
" where a parent is moderately correcting his child, a master his apprentice or scholar, 
and happens to occasion his death, it is only misadventure; for the act of correction 
WAS LAWFUL." Now, it is a part of slave law that the master, or any one having the 
lawful control of a slave, may inflict corporal chastisement on him to any extent not 



22 LAWS DECEPTIVE. 

Sucli is the language of the statutes which have been made on this 
subject; and I have no doubt such is the real intent of the great mass 
of the people in those states. But there is an inherent vice in the 
institution of slavery, which renders it exceedingly difficult, if not 
impossible, to give to the slave, by general legislation, equal protection 
with the free. In respect to homicide, the statute, in terms, may make 
no discrimination between the two classes, and yet the degree of pro- 
tection which is thus afforded to the one and the other may be widely 
different. 

The state of the law in 3fissoiiri supplies a perfect illustration of 
this remark. Thus, by Art, o, ^ 28 of the Constitution, any pei'son 
who shall maliciouslg deprive of life or dismember a slave shall suffer 
such punishment as would be inflicted for the like offence if it was 
committed on a free white person. 

In exact accordance with this requirement, the statute on crimes, in 
treating of homicide, makes no mention of colour or condition of the 
person slain. Sect. 1. "Eveiy murder which shall be committed by 
means of poison, or by lying in wait, or by any other kind of tvi/ful, 
deliberate and premeditated killing, or which shall be committed in the 
perpetration or attempt to perpetrate any arson, &c. or other felony, 
shall be deemed murder of the first degree." Sect. 2. "All other 
kinds of murder at common law, not herein dechxred to be man- 
slaughter or justifiable or excusable homicide, shall be deemed mur- 
der in the second degree." Sect. 3. "Persons convicted of mm'der in 
the first degree shall suffer death; — those convicted of murder in the 
second degree shall bo punished by imprisonment in the penitentiary 
not less than ten years.''^ The 4th section defines justifiable homicide 
in the same undiscriminating language, but it is not necessary to 
extract it. The 5th section is in these words : — "Homicide shall be 
deemed excusable, when committed by accident or misfortune, in either 
of the following cases: First, in laiofally correcting a child, apprentice, 
servant or slave." And it is afterwards provided, that where the "ho- 
micide was committed under circumstances or in a case where by any 
statute or the common law such homicide was justifiable or excusable^ 
the jury shall return a general verdict of not guilty," Revised Sta- 
tutes of Missouri, 344-45; (and see Arkansas Digest, p. 328, ^§ 32, 33 
and 34, similar in effect.) 

The same language is used in regard to the correction of the child. 



afffcting life or limb. State vs. Mann, 2 Devcreux, 263. If death should ensue as a 
consequonce of a corporal chastisement in such a case, the law would not infer that 
it was the inlejiUon of the master to cause it : the presumption would be the other 
way; for, being his propcrlrj, why should he wish to destroy it? At all events, the 
question of intention would be for the determination of the jury; and what jury 
anywhere, but especially in a slave state, would infer, unless the instrument used 
would almost inevitably produce death, that the intention was to kill? '•Immoderate 
correction" by a parent of his child, or a master of his apprentice, is not permitted 
by the common law, and would, therefore, be punishable in either of thesa cases, 
although the child or apprentice should not be killed by it. But there is no such 
law in respect to a slave. He may be beaten to any extent short of occasioning 
death or dismemberment, and his master is wholly dispunishable. The correction 
to this extent heiug entire! >/ lawful as regards the slave makes such a broad distinctioa 
between him and the apprentice, that a conviction oi a master for murder of his slave 
by Qxcessive whipping is »ot to be expected. 



INEFFICIENT PROTECTION. 23 

apprentice, servant and slave, and the one word, lawfully, is prefixed 
as well to the slave as to the child or apprentice. But what is lawful 
correction of a child or apprentice is accurately defined and easily 
explained : the common law has settled that, and the transgression of 
these limits is an indictable ofi"ence. But there is no such limit in 
regard to the power of the master over the slave. He may use any 
instrument and may inflict any number of blows which he may choose. 
This is a principle of slave law, it is believed, of universal application. 
In North Carolina it has been expressly affirmed by the Supreme 
Court, and its necessity asserted and defended in an elaborate opinion 
of the Chief-Justice, on behalf of the whole court. State vs. Ilann, 2 
Dcvereux's Rep. 263, 266. 

In Georgia and Tennessee, the protection of the master in the exer- 
cise of what the Supreme Court of North Carolina designates his ^^un- 
controlled authority over the body" of his slave, is secured in a more 
direct, but not a whit more effectual, way than in Missouri. "If," says 
the statute of 1799, ch. 9, of Tennessee, "any person shall wilfully or 
maliciously kill any negro or mulatto slave, on due and legal convic- 
tion thereof, &c. shall be deemed guilty of murder, as if such person so 
killed had been a freeman, and shall suffer death without benefit of 
clergy." To which this proviso is added: — "Provided, this act shall 
not be extended to any person killing any slave in the act of resist- 
ance to his lawful owner or master, or any slave dying under moderate 
correction." Statute Laws of Tennessee, pp. 676, 677, published in 1836. 

The Constitution of Georgia contains a provision substantially the 
same. "Any person who shall maliciously dismember or deprive a 
slave of life, shall suffer such punishment as would be inflicted in case 
the like offence had been committed on a free white person, and on the 
like proof, except in case of insurrection of such slave, and unless 

SUCH DEATH SHOULD HAPPEN BY ACCIDENT IN GIVING SUCH SLAVE 

MODERATE CORRECTION. Art, 4, ^ 12, and see, accordant with this pro- 
viso, act of Dec. 2, 1799, 2 CohVs Digest, 982, 

To style the ^^ correction" of a slave which causes death, ^^ moderate," 
is a solecism too monstrous for sober legislation. And yet such has 
6een the law of two enlightened states for more than half a century. 
Had a statement of this nature appeared in the pages of a foreign 
hurnal, who is there among us that would not have indignantly 
repelled the charge as an opprobrious falsehood? 

There is another point of view in which this exception as to death 
I»roduced by the moderate corrcciion of the slave claims an observation. 
{ mean, in respect to the protection which it throws over the murderer, 
when on his trial for killing a slave. Every one who has been the 
least attentive to trials for capital offences, or who knows the human 
heart, is well aware that the compassion of a jury is ever ready to lay 
hold of a pretext to save themselves from the painful duty of convicting 
a fellow-being of a crime the punishment of which is death. Strong 
evidence will not, therefore, be required by them to induce the belief 
that the murdei'er's design was the correction of the slave ; that possi- 
bly (and possibilities are usually urged as sufficient justification for 
acquittals, where life is in jeopardy) the measure bestowed was mode- 
rate, and, of course, the death must have been accidental. 



24 KILLING BY CORRECTION. 

In South Carolina, (act of 1740,) the legislature, having by some 
means made the discovery, as they set forth in the law, that "cruelty 
is not only highly unbecoming those "who profess themselves Christians, 
but is odious in the eyes of all men "who have any sense of virtue or 
humanity," — to restrain and prevent barbarity being exercisedtowarda 
slaves, enacted, "That if any person whosoever shall wilfully murder 
his own slave, or the slaves of any other person, every such person 
{i. e. the offender) shall, upon conviction thereof, forfeit and pay the 
sum of seven hundred pounds current money, and shall be rendered 
forever incapable of holding, exercising, &c. any office, &c. ; and in 
case any such person shall not be able to pay the penalty and foi'feit- 
ure hereby inflicted and imposed, every such person shall be sent to 
any of the frontier-garrisons of the province, or committed to the 
workhouse in Charleston for the space of seven years, &c. &c. at hard 
labour." 2 Brevard's Digest, 241. This pecuniary mulct was the only 
restraint upon the wilful murder of a slave in this state, from the year 
1740 to the year 1821, — a period of more than eighty years. But 
wilful muixler, in the sense in which the epithet wilful is here used, is 
not very likely would be often'^ perpetrated by the master. The 
species of murder, the cruelty of which can scarcely be exaggerated 
by any description, and which there is a strong probability would be 
not unfrequently chargeable upon the master or his overseer, is de- 
lineated in another section of the same act, and guarded against, — 
hovj adequately, the reader will judge for himself from the following 
quotation: — "If any person shall, on a sudden heat or passion, or by 
undue correction,-f kill his own slave, or the slave of any other person, 
he shall forfeit the sum of three hundred and fifty poimds current mo- 
ney." 2 Brevard's Digest, 241. 

The first-named of these sections, I have already mentioned, has 
been repealed by an act of 1821, which punishes the wilful, malicious 
and deliberate murder of a slave, by death without benefit of clergy. 
The latter section, so far as relates to the killing of a slave on a sud- 
den heat or passion, J has been supplied by an enactment in the same 
year, which diminishes the pecuniary penalty to five hundred dollars, 

* Perhaps in this supposition I am mistaken. I find in the case of Tlie State vs. 
MGee. 1 Baifs Eeport^, 1C4, it is said incidentally by Messrs. Pinckney and Ford, 
counsel for the state, "that the frequency of the offence (iviJful murder of a slave) 
was owing to the nature of the punisliment," &c. &c. Eelatively, however, I have no 
doubt the latter species of this crime — i. e. murder by undue correction, &c. — must 
have been much more common. A reflection naturally suggests itself from the re- 
mark of Jlessrs. Pinckney and Ford which I have here transferred. This remark was 
made in 1791, when the above trial took place. It was made in a public place— a 
court-house— and by men of great personal respectability. There can be, therefore, 
no question as to its verity, and as little of its notm-iety ; nevertheless, thirty years 
elapsed before a change of the law was effected ! 

fThe exact words of this section of the act of 1821 are, " If any person shall kill 
any slave on sudden heat and passion, such person, on conviction, shall be fined in a 
sum not exceeding $500, and imprisoned not exceeding six months." 

J This differs from the section of the act of 1740, just quoted, in leaving out the 
words " hy undue correction:' The proper inference, therefore, would seem t"o be, that 
killing a slave by U7idue cnrreclion was not within the scope of the act of 1821 but 
was still subject as to punishment to the act of 1740. But 1 find that it has been de- 
cided in South Carolina, by the highest tribunal there, '-any killing of a slave by 
■undue or excessive cwrection is that kind of manslaughter described irfthe actof 1821 
by the words ' sudden U^at and passion.' " Slate vs. Fleming, 2 Sirobhaitt's Sep 464 



DEATH BY WHIPPING. 25 

but authorizes an impi-isonment not exceeding six months. James' 
Digest, 392. 

The law of Alabama is scarcely less objectionable. For after enact- 
ing, '< If any person shall, with malice aforethought, cause the death 
of a slave by cruel, bai*barous or inhuman whipping or beating, or by 
any cruel or inhuman treatment, or by the use of any instrument in its 
nature calculated to produce death, such killing shall be deemed mur- 
der in the first degree," the following sections are found in immediate 
connection: — "If any person, being the overseer or manager of any 
slave or slaves, or having the right to correct such slave or slaves, 
shall cause the death of the slave by such barbarous or inhuman whip- 
ping or beating, or by any other cruel or inhuman treatment, although 
without intention to kill, or shall cause the death of any such slave or 
slaves, by the use of any instrument in its nature calculated to pro- 
duce death, though without intention to kill, unless in self-defence, 
such killing shall be deemed murder in the second degree. 

" If any person, being the owner of any slave or slaves, shall cause 
the death of the slave by cruel, barbarous, or inhuman whipping or 
beating, or by any other cruel or mhuman treatment, although with- 
out intention to kill, or shall cause the death of any such slave by the 
use of any instrument in its nature calculated to produce death, though 
without intention to kill, unless in self-defence or in the use of so much 
force as is necesso.ry to procure obedience on the part of the slave, such 
tilling shall be deemed murder in the second degree." Clay's Alabama 
Digest, 413. 

It is plain, upon the mere reading of these laws: — 1. That it was 
the intention of the legislature to make a distinction in the guilt of 
killing a slave and a,free7nan. 2. That this is done by subverting the 
rule which obtains generally in criminal jurisprudence, that where 
there is the greatest probability of the commission of crime the strong- 
est guard should be placed. 

The life of the slave is in but little danger from poisoning, lying in 
wait, and such other means which imply coolness and deliberation ; 
whilst his helpless condition exposes him to death by cruel, barbarous and 
inhuman xvliipping, begun without an intent to kill, and continued with 
a brutal indifference to consequences until death inevitably ensues. 
And yet this is not to be restrained by the fear of capital punishment, 
— nor yet the more aggi'avated atrocity of killing by '■'■the use of an in- 
strument IN ITS NATURE CALCULATED to producc dcotlx,'''' provided "the 
master, overseer, manager, or other person having the right to correct 
such slave," shall be the murderer. 

Wliere the life of the slave is thus feebly protected, his limbs, as 
might be expected, share no better fate. I quote again fx'om the act 
of 1740, of South Carolina. "In case any person shall wilfully cut 
out the tongue, put out the eye,* castrate, or cruelly scald, burn, or 
deprive any slave of any limb or member, or shall inflict any other cruel 
punishment, other than by xohipping or beating with a horsewhip, cow- 

* How different was the Mosaic law ! — " If a man smite the, eye of his servant, or the 
eye of his maid, that it jKrish, he shall let hiin go free for his eye's sake. And if he 
smite out his man-servant's tooth, or his maid-servant's tooth, he shall let him go free 
*for his tooth's sake." Exodus, chap. 21, verses 26, 27. 

3 



26 . IRON COLLARS. 

skin, switch, or small stick, or by puiiing irons on, or confining or im- 
prisoning such slave, every such person shall, for every such ofieuce, 
forfeit the sura of one hundred pounds current money." 2 Brevard's 
Digest, 241. This section has, as for as I have been able to learn, been 
sutFercd to disgrace the statute-book fi-om the year 1740 to the present 
hour. Amidst all the mutations which Christianity has effected with- 
in the last century, she has not been able to conquer the spirit which 
dictated this abominable law. To say nothing of the trilling penalty 
for mutilalion, what idea of humanity must a people entertain, who, by 
direct legislation, sanction the beating, without limit, of a fellow-creature 
with a horsewhip or coioskin, and the infliction of any torture which the 
ingenuity and malignity of man may invent, in the application of irons 
to the human body, and the perpetual incarceration, if the master so 
will, of 'the unfortunate slave, in a "dungeon-keep," however loath- 
some ? Such, nevertheless, is the just interpretation of this law, — a 
law, too, which at the same time denominates these very acts, which 
IT AUTHORIZES, crucl punishments. 

Louisiana has borrowed the last section of the South Carolina law, 
with the exception of what respects mutilation, and making the penalty 
not more than five hundred dollars nor less than two hundred. See 
1 Martin's Digest, G54. Whatever remarks, therefore, were made upon 
that law will apply equally to this. Her new Civil Code effects no 
reformation of the old law, but is content with the enunciation of a 
general principle, which is regarded, no doubt, as the quintessence of 
humanity. "The slave is entirely subject to the will of his master, 
who may correct and chastise him, though not with umisual rigour, 
nor so as to maim or mutilate him, or to expose him to the danger of 
loss of life, or to cause his death." Civil Code of Louisiana, art. 173. 
How far the power of the master is limited by the expression unusual^' 
rigour may be easily inferred, when it is recollected that the law of 
South Carolina last noticed had been in full force in Louisiana for 
many years before, and Avas so at the time when the Civil Code was 
adopted. 

The Constitution of Mississippi bestows upon the general assembly 
power to make laws to oblige the owners of slaves to treat theui with 
humanity, — to abstain from all injuries to them extending to life or 
limb ; and, in case of their neglect or refusal to comply with the 
directions of such laws, to have such slave or slaves sold for the benefit 
of the owner or owners. Const. Mississippi, title Slaves, sect. 1 ; Revised 
Code, 554. In the exercise of the power thus granted, in the first and 
second clauses, — viz. : "to oblige the owners of slaves to treat them 

* So lately as 1852, the legislature of Louisiana recognised the practice of putting 
iron chains and collars upon slaves, to prevent them from running away. The act 
reads thus :— " If any person or persons, &c. shall cut or break any iron chain or collar, 
which any master of t^laves should have used in order to prevent the running away 
or escape of any such slave or slaves, such person or persons so offending shall, ou 
conviction, <fcc., ho fined not less than two hundred dollars nor exceeding one thou- 
sand dollars, and suffer iaiprisonment for a term not exceeding two years nor less 
than six months." Statutes of 1852, pp. 210 and 552. It is worthy of special com- 
memoration that the legislature of the same state, by the law given above in the text, 
from 1 Martin's Duje.d, G54, imposes a wmc/t less penalty for the iuOictiou of -'cruel 
punishments," of the most atrocious description, upon the slave. 



PROTECTION WITHHELD. 27 

•with humanity, and to abstain from all injuries to them extending to 
life or limb," the general assembly have passed this act: — "No cruel 
or unusual punishment shall be inflicted on any slave within this state. 
And any master or other person entitled to the service of any slave, 
who shall inflict such cruel or unusual punishment, or shall authorize 
or permit the same to be inflicted, shall, on conviction, &c. be fined 
according to the magnitude of the offence, at the discretion of the 
court, in any sum not exceeding five hundred dollars," &c. Revised 
Code, 379,* {act vf June 18, 1822.) Without the testimony of the 
slave, I again remark, a law of this nature may be regarded as nuga- 
tory. But, abstractly considered, what protection does it hold forth ? 
^'Cruel" and ^'unusual," connected as they are by the disjunctive 
^^or," mean precisely the same thing, and will be so construed by the 
court. And what horrible barbarities may be excused under the name 
of usual punishments, the reader will be enabled to judge by recurring 
to the laws of South Carolina and Louisiana contained on the pre- 
ceding pages. 

But what reason can be alleged for not putting in requisition at once 
the important power '*to have slaves sold from their owners who 
neglect or refuse to comply with the directions of laws designed to 
secure humane treatment to such slaves" ? This point will be the 
subject of separate examination hereafter, and I forbear therefore 
enlarging upon it now. 

The Constitution of Missouri has gone beyond that of Mississippi, 
in relation to the protection of slaves from the inhumanity of their 
masters; for it not only er7?/;owcrs the legislature "to oblige the owners 
of slaves to treat them with humanity, and to abstain from all injuries 
to them extending to life or limb," art.o, §26, last clause, (1 31issouri 
Laivs, 48,) but it is made its duty to pass such laws as may be necessary 
for this purpose. If this injunction be regarded in its proper light, it 
will be incumbent on the legislature to remove the restriction which 
has been imposed on the reception of the testimony of all who are not 
whites. As yet, no law has been enacted on the authority of the 
article in the Constitution ; on the contrary, there is an act which 
confers upon the master a new mode of inflicting punishment on the 
slave, which may he perverted to subserve purposes most cruel. "If 
any slave resist his or her master, mistress, overseer or employer, or 
refuse to obey his or her lawful commands, it shall be lawful for such 
master, &c. to commit such slave to the common jail of the county, 
there to remain at the pleusure of the mastei*, &c. ; and the sheriff shall 
receive such slave, and keep him, &c. in confinement, at the expense 
of the person committing him or her." 13Iissouri Laws, 309. While 
for the obvious reason that the master, if cruel and vindictive, can 
gratify his disposition in a manner less expensive and much less trouble- 
some to him in its execution, and more severe towards his victim, I do 
not think it probable this power will be abused, yet, viewing man as 
he is, no law ought to justify and assist in the imposition of a punish- 

* Alabama has a similar law, except as to the penalty, which is hut one hundred 
dollars. Toulmin's Diffesf, 631. 



28 POWER OF DEPUTIES. 

ment of this nature, to be prosecuted to any extent wliicli a wicked 
Iieart may desire. 

Upon a fair review of what has been written on the subject of this 
proposition, the result is found to be : — That the master's power to 
inflict corporal punishment to any extent, short of life and limb, is 
fully sanctioned by law, in all the slave-holding states— that the 
master, in at least two states, is expresslij protected in using the horse- 
whip and cowskin^ as instruments for beating his slave — that he may, 
with entire impunity, in the same states, load his slave with irons, or 
subject him to perpetual imprisonment whenever he may so choose — 
that for cruelly scalding, wilfully cutting out the toUgue, putting out 
an eye, and for any other dismemberment, '\t proved, a fine of one hun- 
dred pounds currency only is incurred in South Carolina — that though 
in all the states the wilful, deliberate and malicious murder of the 
slave is now directed to be punished with death, yet, as in the case of 
a ivhite offender none except whites can give evidence, a conviction can 
seldom, if ever, take place. 

Prop. IV. — All the power of the master over the slave may 

BE exercised, not BY HIMSELF ONLY IN PERSON, BUT BY ANY ONE 
WHOM HE MAI' DEPUTE AS HIS AGENT. 

Louisiana is the only state in which an act of Assembly has been 
passed on this topic. The language of the act may be cited as an 
appalling definition of slavery itself. " The condition of a slave being 
merely a passive one, his suboixlination to his master, and to all who 
represent him, is not susceptible of any modification or restriction, 
(except in what can excite the slave to the commission of crime,) in 
such manner, that he owes to his master and to all his family a respect 
without bounds and an absolute obedience, and he is consequently to 
execute all the orders which he receives from him, his said master, or 
from them." 1 Martin's Digest, G16. 

In the other slave-holding states, the subjoined extract from Mr. 
Stephen's delineation of slavery in the West Indies will, it is believed, 
accurately express the law and the practice :* 



* A case is reported among the decisions in the Supreme Court of Appeals in Virginia, 
which, while it confirms the text, proves how wantonly this power may be and is 
abused. The statement prefixed to the opinion of the court is in thpse words : — "J/a?/ 
brought an action of trespass vi et armis, in the Petersburg District Court, against the 
appellants, {Broivn (£ Bidsseau,) for breaking and entering his close, and beating seve- 
ral of his slaves, in the declaration named, so that he ivas deprived of their se7'vicesfor 
a long time, and throwing down his enclosvtres round his field, whereby his wheat, 
then and there growing, was trodden down and injured by a great number of cattle - 
and horses, &c. &c. A bill of exceptions states, that on the trial the defendants 
offered, in mitigation of damages, the testimony of a witness, tending to prove that 
the plaintiff had given a general liermission to Broivn, one of the defciulants, to visit his 
negro quarters, and to chastise any of his slaves who might be found acting improperly." 
This evidence was rejected, not that it was in itself improper, but on technical objec- 
tions, one of which M'as that it was offered, and according to thj state of the plead- 
ings, if received, would go to the defence of both Brown and Boisseau, whereas the 
PERMISSION was granted to Brown only; and the beating, as had been previously shown, 
had been intlicted solely by Boisseau,—" to whom;" continues the report, " it was ad- 
mitted no such permission had been given." See 1 Munfn-d's Reports, 288, Brown <& 
Boisseau vs. May. What more flagrant abuse of the master's power of delegation 
could be practised than this,— to grant a, general permission to one not in the func- 



HAVE XO TROPERTY. 29 

"The slave is liable to be coerced oi' punisbed by the whip, and to 
be tormented by every species of personal ill-treatment, subject only 
to the exceptions already mentioned, ( i. e. the deprivation of life or 
limb,) by the attorney^ manager, overseer, driver, and every other person 
to ichose yoveriiment or control the owner may choose to subject him, as 
fully as by the owner himself. Nor is any special mandate or express 
general power necessary for this purpose ; it is enough that the inflicter 
of the violence is set over the slave for the moment, by the owner, or by any 
of his delegates or sub-delegates, of tchatever rank or character.'''' Stephen^ s 
Slavery, page 46.'=^ 

This power of deputation by the master is one of the degrading and 
distinguishing features of negro slavery. It was not permitted by the 
law of villanage. "The villein might have an action against any man 
but his lord for beating him, except for just cause ; and it ivas no legal 
defence in such action, to plead that it was done by the command of the 
lord.'' 9 Coke's Reports, 70 A; and see Stephen, supra. 

The most common delegate of the master is known by the appella- 
tion of ^^ overseer." A description of this class of beings is furnished 
by Mr. Wirt, in his Life of Patrick Henry, page 3-4 Coming from this 
source, there is no reason to suspect the character to be surcharged 
with cruelty, and the following extract is in the words of that author: — 
" Last and lowest, [i. e. of the different classes of society in Virginia,) 
a feculum of beings called ' overseers,' — the most abject, degraded, un- 
principled race, — always cap in hand to the dons who employ them, 
and furnishing materials for the exercise of their pride, insolence, and 
spirit of domination." 

Prop. V. — Slaves have no legal eights of property in things 

REAL OR PERSONAL ; AND WHATEVER PROPERTY THEY MAY ACQUIRE 
BELONGS, IN POINT OP LAW, TO THEIR MASTERS. 

Of negro slavery only can this harsh doctrine be afiBrmed. Among 
the Romans, the Grecians, and the ancient Germans, slaves were per- 
mitted to acquire and enjoy property of considerable value, as their 
own. The Israelites, when in bondage to the Egyptians, were allowed 
to acquire private property. In the account of the plagues inflicted 
upon the Egyptians in consequence of Pharaoh's refusal to let the 
Israelites go to worship in the wilderness, when the plague of murrain 
among the cattle is threatened, it is said, "And the Lord shall sever 
between the cattle of Israel and the cattle of Egypt, and there shall 
nothing die of all that is the children's of Israel." Exodus ix. 4. And 
in the sixth verse it is added, "And all the cattle of Egypt died : but 
of the cattle of the children of Israel died not one." And see Exodus 
X. 9, 24, 25, 26 ; also Ibid. xii. 32, 38. " The Polish slaves, even prior 



tions of an overseer, or general deputy, to superintend the employment, &c. of the 
slaves, (for this character is plainly denied to Erown, inasmuch as he is charged with 
having broken the close of May, i. e. entered unlawfully, without his consent, upon 
his premises,) to visit his negro quarters, and to chastise any of his slaves who might 
be found acting improperly I 

* It has been decided by the Supreme Court of North Carolina, that the liirer of a 
slave cannot bo indicted for "a cruel and unreasonable battery" on such slave. Th6 
State vs. Mann, 2 Dcvtrsux's Hep. 2C3. 

3^ 



30 HAVE NO TROPERTT. 

to any recent alleviations of their lot, were not on]j^ allowed to hold 
property, but were endowed with it by their lords." Stephen'' s Slavery, 
^c. 59, citing WraxalVs 3Iemoirs, vol." 2, letter 21. In the Spanish and 
Portuguese colonies the money and eflfects which a slave acquires by 
his labour at times set apart for his own use, or by other honest 
means, are legally his own and cannot be seized by his master. Ibid. 
60, And even in the British West India Islands, where the condition 
of slavery on the whole is not, perhaps, less severe than it is in the 
slave-holding sections of the United States, and where, in truth, the 
unwritten law is as above stated in this proposition, yet the feelings 
of the community there forbid its enforcement by the master. Since, 
however, to deprive the slave of any little articles of property which 
he might obtain by the exercise of his industry and skill, in the few • 
moments of leisure occasionally indulged to him, has been thought of 
sufficient importance to call for solemn acts of the general assemblies 
in our slave-holding states, there seems but little reason to believe 
that humanity has opposed their execution and established a better 
practice there. I insert various acts of Assembly, which will evidence 
in what light this subject is viewed in the states so often alluded to. 
Thus, in South Carolina, "It shall not be lawful for any slave to buy, 
sell, trade, &c. for any goods, &c. without a license from the owner, 
&c. ; nor shall any slave bo permitted to keep any boat, periauger* 
or canoe, or raise and breed, for the benefit of such slave, any horses, 
mares, cattle, sheep or hogs, under pain of forfeiting all the goods, 
&c. and all the boats, periaugers or canoes, horses, mares, cattle, sheep 
or hogs. And it shall be lawful for any person whatsoever to seize 
and take away from any slave all such goods, &c. boats, &c. &c. and 
to deliver the same into the hands of any justice of the peace, nearest 
to the place where the seizure shall be made ; and such justice shall 
take the oath of the person making such seizure, concerning the 
manner thereof ; and if the said justice shall be satisfied that such 
seizure has been made according to law, he shall pronounce and declare 
the goods so seized to be forfeited, and order the same to be sold at 
public outcry, one half of the moneys arising from such sale to go to 
the state, and the other half to him or them that sue for the same." 
James' Digest, 385-6; Act of 1740. 

The act of the legislature of Georgia is in nearly the satne wokIs. 
Prince's Digest, 453 ; 2 Cobb's Digest, 979. And, lest perchance the 
benevolence of the master should sometimes permit the slave to hire 
himself to another for his own benefit, Georgia has imposed a penalty 
of thirty dollars "for every weekly offence on the part of the master, 
unless the labour be done on his o\a\ premises," {Prince's Digest, 457,) 

*FlEriagua, as this vrord should be spelled, is thus defined in the Encyclopa3dia, 
(first American edition, published by Mr. Dobson :) " A sort of large canoe made use 
of in the Leeward Islands, South America, and the Gulf of Mexico. It is composed 
of the trunks of two trees hollowed and united together, and thus differs from the 
canoe, which is formed of o)ie tree." In this country, the distinction here mentioned 
between a canoe and periagua is not always observed. In " A series of letters from 
Timothy Flint, principal of the Seminary of Rapide, Louisiana, to the Rev. James 
I'lint, of Salem, Mass.," I find the periagua described as "a vessel of from two to four 
tons' burden, hollowed sometimes from one prodigious tree, or from the trunks of two 
trees united, and a plauk rim fitted to the upper part." 



HAVE NO PROrERTY. 81 

raid pay, besides, a, tax of oue hundred dollurs. 2 Cobb, 1080. !So in 
Kentucky, with a slight modification. 2 Litt. ^ Swi. Digest, 1159-60. 
See Mississijjj^i Rev. Code, 375, and Laivs of Tennessee, Oct. 23, 1813, 
duip. 135. 

And in Virginia, if the master shall permit his slave to hire himself 
out, it is made lawful for any person and the duty of the sheriff, &c. to 
apprebend such slave, &c. ; and the master shall be fined not less than 
ten dollars nor more than thirty, &c. 1 Ucd. Code, 374-5 ; Code of Vir- 
ginia of 1849. In Missouri, not less than twenty dollars, nor more than 
one hundred dollars. Missouri Digest, 1014 ; and see Haywood's 
Manual, 534; Ckafs Digest, 541. 

As early as the year 1779, North Carolina interposed as follows : — 
^^All horses, cattle, hogs or sheep, that, one month after the passing of this 
act, shall belong to any slave or be of any slave's mark, in this state, shall 
be seized and sold by the county wardens, and by them applied, the one half 
to the support of the poor of the county, and the other half to the informer.''^ 
Haywood's Manual, 52G. See 3Iississippi Rev. Code, 378, and Kilty'' s Laios 
of Maryland, act of 1723, chap. 15, ^ 6. 

In Maryland, by act of April sessiojis, 1787, chap. 33, <<any person 
who shall permit and authorize any slave belonging to liim or herself, 
&c. to go at large or hire himself or herself, within this state, shall 
incur the penalty of five pounds (thirteen and one-third dollars) cur- 
rent money per month, except ten days at harvest." This penalty was 
increased to twenty dollars, excepting however an additional ten days 
in harvest. Act of December sessions, 1817, chap. 104, | 1. By both 
acts, a slave being a pilot is not included within the prohibition. 

In Mississippi a slave is forbidden to cultivate cotton for his own 
use ; and should the master permit him to do so he incurs a fine of 
fifty dollars, iMiss. Rev. Code, 379. 

And "if any master, &c. of a slave license such slave to go at largo 
and trade as a freeman, he shall forfeit the sum of fifty dollars for 
each and every offence." Mississippi Rev. Code, 374; and see 2 Mis- 
souri Laics, 743 ; also. Kilty's Laivs of Maryland, act of April, 1 787, 
chap. 33. An equal fine is imposed upon a master convicted of permit- 
ting his slave to keep ^^ stock of any description." Act of January 29, 
1825, Pamph. Laics of Mississippi 0/1825. 

The Ci^l Code of Louisiana coincides with the text in the following 
manner :-=-"u4.ZZ that a slave possesses belongs to his master ; he possesses 
nothing of his own, except his peculium ; that is to say, the sum of 
money or movable estate lohich his master chooses he should possess.'^ 
Art. 175; and see 1 Martin's Digest, GIG. "Slaves are incapable of 
inheriting or transmitting property." Civil Code, cr^. 9-15. "Slaves 
cannot dispose of or receive by donation inter vivos or mortis causa, un- 
less they have been previously and expressly enfranchised conformably 
to law, or unless they are expressly enfranchised by the act by which 
the donation is made to them." Art. 14G2. "The earnings of slaves 
and the price of their service belong to their owners, who have their 
action to recover the amount from those who have employed them." 
Louisiana Code of Practice, art. 103. 

In Arkansas a statute has been passed in these words: — "Persons 
owning slaves in this state may permit such slaves to labour for them- 



82 HAVE NO PROPERTY. 

selves on Sunday, if such labour is done Toluntarily by such slaves and 
■without tho coercion of the master, and for the sole use of the slave." 
Digest of Statutes by English, p. 370. 

The decisions of the courts confirm the doctrine* of these acts of 
assembly ; as in South Carolina, where it was held, " That slaves can- 
not take property by descent or purchase." 4 De Saussure's Chancery 
Report, 2G6; Bynum vs. Bostwick. And 'm North Carolina, — "Slaves 
cannot take by sale, or devise, or descent. And a devise of land, to he 
rented out for the maintenance of a slave, zoas adjudged to he void." 1 
Cameron's and Norwood's Reports, 353 ; same decision, 1 Taylor's Re- 
ports, 209. Also in Maryland, a gift, bequest or devise made to a slave, 
by any not his owner, would be void. See Dulany's opinion, 1 Mary- 
land Reports, 501. Though in this last state such a devise of real or 
personal estate, made by the om^er of the slave, has been held to entitle 
tlie slave to freedom, as the implied intention of the owner. Ilall vs. 
MuUin, 5 Harris and Johnso7i's Reports, 190. In Kentucky it has been 
decided that, although a master gave permission to his slave to go at 
large and acquire property for himself, yet property so acquired be- 
longed to the master. Carter vs. Lecper, 5 Dana, 201. And where a 
person, having obtained the written permission of a master to trade 
with his slave, purchased a horse from tlie slave, and the master sued 
him for the price of the horse, it was held that the horse belonged not 
to the slave, but to the master, and that he might recover the price of 
the horse if not paid to the slave. Bryant vs. Sheely, 5 Dana, 530. 

* Thore is an isolated case, of pretty early date, (determined in the Supreme Court 
of SouUi, Carolina; see 1 Hay's Reports, 2ij(i-&i ; The Guardian of Sdhj, a negro, vs. 
Beattt/,) which is too intorcstini^ in several points of view to bo passed by unnoticed. 
It is in opposition to the spirit of tho laws, and to other later derisions of the courts, 
on which account, if no other reason could be assij^ned, it would be necessary to in- 
sert it. An outline of tho facts of tlie case is thus given by the reporter. " This was 
a special action, in nature of ravishment of ward, to establish the freedom of a negro 
girl, according to the form prescribed by the act of the legislature for that purpose. 
The case was this: — A negro wench slave, tho property of the defendant, by Avorking 
out in town, loit/i 2Krmissio7i of Iter master, had l)y her industry acquired a con siderable 
sum of money over and above what she had stipulated to pay for her monthly wages 
to her master; ajid, liavivg an affection for a negro girl, Sally, she purchased lier with 
this money which she had been for years accumulating, and gave her her freedom. 
For a considerable time after the purchase was made, the defendant never claimed any 

firoperty in tho negro girl, — never paid taxes for her, but, on the contrary, acknow- 
edged he had no property in her. Some short time, however, before the "commence- 
ment of the present action, when called upon to deliver up the girl as free, he refused ; 
in consequence of which this action -was brought. The court charged the jury in 
favour of the plaintiff; Chief-Justice Rutledge saying, in conclusion, 'If the wench 
chose to appropriate the savings of her extra labour to tho purchase of this girl, in 
order afterwards to set her free, would a jury of the country say No? He trusted 
not. They were too humane and upright, he hoped, to do such manifest violence to 
so singular and extraordinary an act of bajievolence.' Tho jury, without retiring 
from the box, returned a verdict for the plaintiff's ward, and she ivas set at liberty." 
"Which of tliese was neighbour to the oppressed negro girl? 

I have called this an isolated case, and stated that it is in opposition to other later 
decisions. One of these, as recent as 1846, is reported in 2 l^ichardson's Reports, 424 ; 
Ehzuheth P. Gist vs. Maurice Toolry. I quote merely tho syllabus of the reporter. 
'•The plaintiff's slave, William, made monev over and above his wages, and placed it 
in the hands of the defendant to aid in purchasing his (William's) children. The 
children were purchased by the defendant. IIei.i), that the p/a*'»/)'^' rms entitled to 
recover^ the money from the defendant. Notwithstanding any promise by the master 
that his slave shall have certain acquisitions, all the acquisitions of the "shwc in pos- 
session are the property of his master." 



ETC. 33 

A slave paid money, which he had earned over and above his waffcs, 
for the purchase of his children, into the hands of B., and B. pur- 
chased such children with the money. Held, that the master of such 
slave was, notwithstanding the money had been thus obtained and 
thus appropriated, entitled to recover the money of B. Gist vs. Tookeij, 
2 Jiichardson^s (South Carolina) Reports, 424. And in Teiineesee, 
money acquired by a slave with his master's consent belongs, never- 
theless, to the master. Jenkins vs. Brown, G Humphrey'' s Reports, 299. 
What is earned by the slave, even though it be in the public service, 
as by services in the Revolutionary army, belongs to the master ; as 
where a slave was allowed by his master to enlist in the North Caro- 
lina line, and for his services ho received a grant of land, just as was 
bestowed on other enlisted soldiers, it was held that this land belonged 
to the master. University vs. Cambreleng, G Verger's Reports, 79. 

Prop. VI. — The slate, keing "a tersonal chattel," is at all 

TIMES LIABLE TO HE SOLD ABSOLUTELY, OB MOUT<JAGED OR LEASED, 
AT THE WILL OP HtS MASTER. 

After what has been said with respect to the master's power over 
his slave, it may seem to bo of but little consequence to the slave 
whether he remain for life subject to one and the same master, or bo 
transferred successively to many others. As fiir as the master's 
treatment towards him is concerned, this conclusion may be taken as 
generally correct. But it must not be forgotten that the slave is a 
human being, and, although his degraded condition may have blunted 
or perhaps destroyed the nicer sensibilities of our nature, yet is ho 
susceptible of many of the feelings which attach those of the same 
species to each other, and even to insensate objects. As man, ho 
must be alive to the tics of consanguinity and afKnity. As man, he 
must know what friendship is. As man, it is scarcely possible ho 
should not feel an attachment even to place. And as man, the indul- 
gence of these feelings cannot fail to contribute largely to his happi- 
ness. To be torn from such endearments, without tlio hope of a re- 
storation, and yet live, must inflict a pang agonizing beyond descrip- 
tion. The terror which his master's presence inspires renders those 
of his own condition more dear. Nevertheless, in the slave-liolding 
states, except in Louisiana, no law exists to prevent the violent 
separation of parents from their children, or even from each other.* 



* One of tho abolition acts of Pennsylvania (act of 29th of INIarch, 1788) contains 
this provision : — " If any owner or possessor of any ne^ro or ninlatto slave or slaves, 
or servant or servants, for a term of years, shall, from and after tho first day of Juno 
next, separate or remove, or cause to be separated or removed, a husband from his 
•wife, a wifo from her liuslirind, a child from his or her parent, or a parent from a 
child, of any or either of 1h(> descriptions aforesaid, to a fj;n\ater distance than ten 
miles, with the design and intention of changinu; the habitation or place of abode of 
such husband or wife, parent or cliild, unless such child shall bo above tho age of 
four j-ears, or unless tho consent of such slave, &c. shall have been obtained and tes- 
tified as hereinbefore described, {i. «. by acknowledgment before a magistrate, &c.) 
such person or persons shall severally forfeit and pay tho sum of lifty pounds, with 
costs of suit, for every such offence, to bo recovered by action of debt, &c. <tc. at Iht 
suit of any person who will sue for tho same, one moiety, &c. for tho use of the plain- 
tiff," Ac. There is but little humanity, however, in this provision. Slaves separated 
fpom each other by n distance of ten miles miglit never sec each other. IScndos, the 



34 MAY BE SOLD FOR DEBT. 

In most other countries in wliicli slavery is tolerated, the slave is era- 
ployed in the cultivation of the soil, and cannot, by sale, be detached 
from it. Such is the case in the Spanish, in the Portuguese, and 
even in the French, colonies. The Code Noir, art. 47, (I quote from 
Stephen, not having the code before me,) prohibits the selling of the 
husband without the wife, the parents without the children, or vice 
versd. In voluntary sales, made contrary to this regulation, the wife 
or husband, children or parents, though expressly retained by the 
seller, pass by the same conveyance to the purchaser, and may be 
claimed by him without any additional price.* See Stcjjheii's Slavery, 
cj-c, 69. 

If the humanity of the French has adopted this law, why should not 
the citizens of our republics imitate so good an example ? But it is 
foreign to my plan to dwell longer on this topic. I pass to a kindred 
proposition, — the source of perhaps greater evil. 

Prop. VII. — The slave is at all times liable to be sold, by 

TKOCESS OP LAW, FOR THE SATISFACTION OF THE DEBTS OF A LIVING 
OR THE DEBTS AND BEQUESTS OF A DECEASED MASTER, AT THE SUIT 
OF CREDITORS OR LEGATEES. 

In the British West Indies, where the law is similar to that which 
is expressed in this proposition, well-informed writers seem to regard 
the sales of slaves hj process of law as productive of more cruel con- 
sequences than those which arise from voluntary alienation. Mr. 
Bryan Edwards, who, it will be recollected, ivas the champion of slavery 
and of the slave trade, in his History of the West Indies, vol. 2, book 4, 
chap. 5, after speaking of certain regulations which had been pro- 
posed for the melioration of slavery, uses this language : — " But these 
and all other regulations which can be devised for the protection and 
improvement of this unfortunate class of people wiU be of little avail, 
unless, as a preliminary measure, they shall be exempted //-oj/i the cruel 
hardships to which they are frequently liable, of beiny sold by creditors, 
and made subject, in a course of administration by executors, to the 
payment of all debts, both of simple contract and specialty." This 
he stigmatizes as a '■^grievance remorseless and tyrannical in its prin- 
ciples, and dreadful in its effects;" the revival "in a country that pre- 
tends to Christianity of the odious severity of the Roman law, which 
declared sentient beings to be inter res; a practice injurious to the 
national character and disgraceful to humanity. A good negro," 
continues he, "with his wife and young family rising about him, is 
seized on by the sheriff's officer, forcibly separated from his wife and 
children, dragged to public auction, purchased by a stranger, and 
perhaps sent to terminate his miserable existence in the mines of 

Beparation of children from their parents after fom- years of age is unwarrantable 
cruelty. 

^ * "This law," says the compiler of the Annals of the Sovereign Council of Mar- 
tinique, " has always been rigidly executed whenever a claim has been set up on the 
part of the purchaser. I have known slaves who have been sent to Guadaloupe or 
yt. Domingo, to be expatriated and sold, to reclaim their children remaining in our 
colony, with success, through the action of the purchasers in the coloiiies to which 
they were sent." ^eo Stephen's Siavcry, G"J and 70, cUiiia Amudes t/d la AJarfinique, 
tome 1, p. 285. 



MAY BE SOLD FOR DEBT. 35 

Mexico ; and all this without any crime or demerit on his part, real 
or pretended. He is punished because his master is unfortunate." 

It would be in vain for me to attempt to augment the horror which 
every well-regulated mind must feel from this eloquent description of 
the cruelty of this law. For humanity's sake, I rejoicf; to say that 
the sphere of its operation is by no means co-extensivo with the pre- 
valence of slavery. With the exception of the British colonies in thei 
West Indies, and I suppose sft Demarara, and perhaps in the small 
islands belonging to the Dutch, it obtains only in the republican slates 
of North America !^ And here again I recur to Mr. Stephen, as ample 
authority. ''Of the liability," says he, "of slaves to be seized and 
sold separate from the land they cultivate, by the master's creditors, 
for the payment of his debts, it may safely, I believe, be pronounced 
that a precedent to such cruel injustice is not to be found in any part 
of the Old World." "Plantation slaves, not only in the Spanish and 
Portuguese, but in the French colonies also, are real estate, and 
attached to the soil they cultivate, partaking therewith all the re- 
straints upon voluntary alienation to which the possessor of the land 
is there liable ; and they cannot be seized or sold by creditors for 
satisfaction of the debts of the owner." It has already been stated 
that by the Code Noir, art. 47, the husband cannot be sold without the 
wife, nor the parents without the children. "Sales made contrary to 
this regulation, by process of law under seizure for debts, are declared 
void." See Stephen's Slavery, <5'c., 68-9. 

Since, then, from what has been said upon this and upon the last 
preceding proposition, it appears no restraint (except a partial one in 
the state of Louisiana) is imposed upon the sale and transfer of 
slaves,! but that these may take place, not only at the will of the 
master, but against his will, by process of law, <j-c., sufficient authority 
is at once disclosed for the prosecution, to any extent, of the inter- 



* From the generality of this remark -the state of Louisiana must be excepted. It 
•will be recollected that, at the beginning of this chapter, a law was extracted from 
the Civil Code of the state, by which slaves are declared to be real estate,— to ha 
ranked among immovahle. property. When, therefore, the owner of slaves is, as I 
presume is most commonly the case, possessed of land, the slave cannot be separated 
from it by process of law. Besides this humane regulation, there are several others 
•which deserve to be signalized, viz. : — " If, at a public sale of slaves, there happen to 
be some who are disabled through old age or otherwise, and who have children, such, 
slaves shall not be sold but with such of his or her children whom he or she may 
think proper to go with." 1 Martin's Digest, C12, act of July 7. 1S06. 

"Every person is expressly prohibited from selling separately from their mothers 
the children who shall not have attained the full age of ten years." Ibid. These pro- 
visions have probably been suggested by a knowledge of the mxich more humane ones 
•which are comprised in the Code Noir of Louis JilV., oitracts from which are given 
in the text of the former proposition. I call the Code Noir much more liumane ; for, 
though the slaves disabled by old age, &c., according to the Louisiana law, are not to 
he sold a^rt from their children without their consent, yet the master may retain. 
them and sell their children, and thus the like painful separation be effected. 

t This — as most of the remarks in this -work — applies exclusively to those states in 
■which laws for the abolition of slavery have not been enacted. For in these latter 
states at least, whenever the abolition of slavery has been, by a law, gradual in its 
operation, it has been foiind necessary to prevent slaves from being carried out of their 
respective limits. And in Delaware, though a slave-holding state, slaves cannot be 
exported from the state without the license of two justices of the Court of Quarter 
SesBioES, Act of June 11, 1793, ch. 20. 



86 PtESTEAINTS ON DOMESTIC SLAVE TRADE. 

tcrriiorial slave trade Avliich exists among us. Many of the slave- 
liolding states, however, while they permit their citizens to sell their 
slaves to whom they please, and to carry them where they please, 
yet, for reasons of policy, have found it expedient to enact laws to 
prohibit, in a great measure, the further introduction of them into their 
respective limits. Laws with this aspect have been enacted in the 
states of Delaware, Maryland, North and South Carolina, Tennessee, 
Kentucky, Georgia, and Louisiana. The act of Assembly of North 
Carolina, which, being one of the earliest,^' has probably served as a 
precedent in the other states, deserves particular commemoration : 
and I therefore transcribe those sections which are important to the 
present inquiry : — 

^^ Section \. — From and after the first day of May next, no slave or 
indented servant of colour shall be imported or brought into this state 
by land or water ; nor shall any slave or indented servailt of colour, 
who may be imported or brought contrary to the intent and meaning 
of this act, be bought, sold, or hired to any person whatever. 

^'■Section 2. — Every person importing or bringing slaves or indented 
servants of colour into this state, after the said first day of May next, 
by land or water, contrary to the provisions of this act, shall forfeit 
and pay the sum of one hundred pounds for each and every slave or 
indented servant of colour so imported or brought. And every person 
who shall knowingly sell, buy, or hire such slave or indented servant 
of colour, shall, in like manner, forfeit and pay the sum of one hun- 
dred pounds for each and every slave, &c. ; one moiety of which for- 
feiture shall be to the use of the state, and the other moiety to him 
or them who shall sue for the same, &c. 

^^ Section 3. — It shall be the duty of all justices of the peace, 
sheriffs, coroners, constables or other judicial and ministerial officers 
of this state, to use all reasonable and lawful means to carry this act 
into effect, which if they or any of them neglect to do, it shall be 
deemed a misdemeanour in office. And any officer who shall fail, 
neglect or refuse upon application to perform the duties aforesaid, 
shall be held and deemed liable to the forfeitures inflicted on those 
who may import or bring a slave or indented servant of colour into 
this state in the first instance, and shall be proceeded against in the 
like manner and to the like effect." 

To the generality of this prohibition the following exceptions are 
added : — 

^^ Section 4. — Nothing in this act shall be construed to prevent any 
person or persons, being citizens of the United States, or subjects or 
citizens of foreign counti'ies, who intend to reside and settle within tho 
limits of this state, from bringing with him, her or them, such slaves 
or servants of colour as they may think proper ; or to prev^t such 
persons from travelling with their slaves, &c. through this state, in 



* The law of Delaware bears date a few j'ears anterior to that of Xorth Carolina; 
but the provisions of the aot of the latter state have been adopted, with but little 
variation, in the o4her states. 



RESTRAINTS ON DOMESTIC SLAVE TRADE. 37 

order to settle in another state ; or to prohibit any citizen of this state, 
who may obtain slaves, &c. by marriage, gift, legacy, devise or descent, 
or who hath heretofore entered into bona fide contracts, from bringing 
the slaves or servants of colour so obtained or contracted for into this 
state, by land or water." And, in order to guard against an abuse of 
the privileges conferred by these exceptions, it is made the duty of 
the persons coming within them to make oath that the slaves intro- 
duced are not intended for traffic, nor in evasion of the act of Assem- 
bly above cited. Hmjicood's 3Ianual, 533-4, act of 1794, chap. 2. 
And sea 2 Brevard's Digest, 256 to 261 inclusive, (acts of 1800, 1802, 
& 1803;) Laics of Maryland, act o/1796, chap. 67; Laws of Delaware, 
act 0/1787, chap. 145, § 7, and act of 1789, chap. 193; 2 Litt. <^' Sici. 
1162, act r/ 1815 ; Prince's Digest, 373-4,* ac^ o/1817; Louisiana, 
act of 1826, [see Pamphlet Laws.) 

The number of slaves admissible into the above states, in virtue of 
tlie proviso as to persons removing with slaves into the state, and in 
favour of those who may derive them by gift, descent, marriage or de- 
vise, it is probable would not gi*eatly augment this species of popula- 
tion. It must, however, be evident that, while every coloured person 
is presumed to be a slave, and while a transfer of such is permitted 
without restraint among citizens of the same state, no matter how re- 
mote in distance may be the places of their respective residences, that 
it cannot be very difficult, especially with the pretext which is sup- 
plied by the proviso, to introduce within the extensive limits of most 
of the above states as many slaves as any one, lured by a high price, 
may choose. At the present time, I presume, there is but little temp- 
tation to prosecute this traf&c in the states where the prohibitory law 
has been adopted ; for a mart is open in the states of Alabama, Mis- 
sissippi, Florida, Arkansas and Missoui-i, which is not likely to be 
glutted for many years to come. And even Virginia,f after having, 

* The African slave trade was prohibited in Georgia in 1798, by an article of her 
Constitution, ai-t. 4, § 11. But it was not imtil 1S17 that the act of the legislature 
was procured for the prohibition of the inter-territorial traffic. 

f Between the years 1699 and 1772, the legislature of Virginia passed numerous acts 
to discourage the importation of slaves, The means resorted to for this pvirpose was 
the imposition of a considerable duty on imported slaves. See 2 TucJcer's Blaclstone, 
Appendix, 49, 50. The royal negative was exercised in relation to several of these acts, 
and it is abundantly demonstrated by Judge Tucker, that a direct effort by the colony 
would have been entirely unavailing. The fate of an act of this description which 
was attempted by the assembly of Pennsylvania in the year 1712 might be cited as 
additional proof of this disposition on the part of the crown. At the period of our 
Kevolution, a strong conviction of the impolicy and inhumanity of the traffic in slaves 
seems to have existed in Virginia. And in the year 1778, as is stated in the text, an 
entire inhibition of the importation of slaves within her borders, except such as might 
be brought by emigrants to the state, or might be derived by her citizens from descent, 
parriage or devise, took place. This humane act, after having undergone by subse- 
quent legislatures several revisions and slight mvitations. without materially affecting 
its principles, was, in the year 1819, almost wholly annulled; — luholly it could not be, 
from the paramount force of the Constitution and laws of the United States. IIow 
Viumiliiiting the contrast which is exhibited by the provisions of this act of 1819, and 
the foUowing quotation from the preamble to the Constitution of this state, promul- 
gated on the 29th June, 1776: — "Whereas George the Third, king, &c., heretofore 
intrusted with the exercise of the kingly office in this governmant, hath endeavoured 
to .pervert the same into a detestable and insupportable tyranny, by prompting our 
negroes to rise in arms among us, — tJiose very negroes whom, by au inhumax use 07 

K..t> J^'JifiACIVE, 4ZE £iT;-: ESFUSED us PERMIgSWN TO EXCLUDE BY LAY." 



88 SLAVES CANNOT CIIANOE MASTERS. 

in tlio yoav 1778, enacted an inhibition of tlie importation of slaves, 
with a few exceptions, within her borders, has recently resumed her 
ancient policy, and now proclaims her willingness to receive all those, 
not convicted of crimes, who have been *' born within the United States 
or any territory thereof, or within the District of (Jolumbia." 1 Re- 
vised Code, 421-2, act of 1819 ; Code of Virginia of 1849, p. 457. 

I will conclude my observations on the subject of this and the next 
preceding section, by holding up, for tlie imitation of those whom it 
may concern, the conduct of the aborigines of our country, whom, 
in courtesy to tliose for whom this is written, I shall style savages. 
Speaking of the Seminole Indians, the author of a small work pub- 
lished at Charleston, South Carolina, in the year 1822, entitled "■ No- 
tices of East Florida, with an account of the Se^ninole nation of Indians, 
by a recent traveller in the Province,''^ says, "Another trait in their cha- 
racter is their great indulgence to their slaves. Though -hunger and 
want be stronger than even the sacra fames auri, the greatest pressure 
of these evils never occasions them to inipose onerous labours on the 
negroes, or to dispose of them, though ten pted by high olfers, if tht 
latter are umvilling to be sold." 

Prop. VIII. — A SLAVE CANNOT BE A TARTY BEFORE A JUDICIAL 
TRIBUNAL IN ANY SPECIES OP ACTION AGAINST HIS MASTER, NO MAT- 
TER HOW ATBOCIO.US MAY HAVE BEEN THE INJURY WHICH HE HAS 
RECEIVED FBOM HIM. 

In a former part of this chapter the several laws which profess to 
give redress to the slave for cruelty inflicted upon him by his master 
were brought together, their principles discussed, and their inefficacy 
exposed. By none of these, it will bo perceived, however, could the 
slave appear in any capacity against his master ; and therefore, though 
they may seem to have some connection with this proposition, I do not 
deem it lit or necessary to make any comment upon them in this place. 
The law is unquestionably, as stated above, without any exception oi? 
limitation. 

Prop. IX. — Slaves cannot redeem themselves, nor obtain a 

CHANGE of masters, THOUGH CRUEL TREATMENT MAY HAVE REN- 
DERED SUCH CHANGE NECESSARY FOR THEIR PERSONAL SAFETY. 

This proposition holds good as to the right of redemption in all the 
slave-liolding states ; and equally true is it as respects the right to 
compel a change of masters, except in Louisiana and Kentucky. Tho 
Civil Code of Louisiana contains a regulation by which tho latter pri- 
vilege may sometimes, perhaps, be obtained by the slave. Yet the 
conditions upon which its extension to the slave depends arc such 
that it needs strong proof to induce the belief that the law has ever 
been called into action. For it requires as preliminaries, — First, that 
tho master bo convicted of cruelty, — a task so formidable that it can 
hardly be ranked among possibilities ; and, secondly, it is afterwards 
optional with the judge whether or not to make tho decree in favour of 
tho slave. I extract the article of the code, which is in these words : 
— "No master shall be compelled" to sell his slave, but in one of two 
cases, to wit : the first, when, being only co-proprietor of the slave, 



WHEN OWNERS MAY SUE. 39 

his co-proprietor demands the sale, in order to make partition of the 
property ; second, when the master shall be convicted of cruel treatment 
of his slave, and the judge shall deem it PRorER to pronounce, he- 
sides the penalty established for such cases, that the slave shall be sold at 
public auction, in order to place him out of the reach of the poicer which 
his master has abzised.'^ Art. 192. And in Keniuchy, by act of 1830, a 
mode is pointed out by which, in case a jury should be of opinion that 
the owner of a slave has treated him cruelly and inhumanly, and so as 
to endanger his life or limb, such slave may be sold to another master. 
2 3Iorehead Sf Broum's Digest, 1481-2. 

In Turkey the law is still more favourable to the slave. '' For he 
may allege contrariety of tempers, whereby they cannot live together, 
and the judge will decree that the patron shall carry his slave to mar- 
ket and sell him." Life of Hon. Sir Dudley North, p. 63 of vol. iii. of 
Lives of his three brothers, by Roger North, London edition of 1826. 

The Constitution of Mississippi, as we have before seen, empowers 
the legislature to enact a law for the benefit of the slave in this 
partioular;* yet, though the subject of cruelty by the master to his 
ylave has claimed a portion of their attention, the humane design of 
the Constitution has been disregarded. This neglect, not only in 
Mississippi, but in the slave-holding states generally, is the more 
remarkable, inasmuch as in the codes of several of these same states a 
provision of this nature exists for the cases of indented servants and 
apprentices. See particularly Prince's Digest, 458. Such a regulation 
every one who will take the trouble to reflect on the subject must 
consider indispensable for the slave's protection. What a 'mockery 
must it be to pass laws professedly to punish the master's cruelty to 
his slave, if the slave is still to be left in the power of the same mas- 
ter, exasperated by the punishment and disgrace which must ensue 
from conviction ! "Would you," said Mr. Randolph, in his speech, 
deliveredf in the House of Representatives, on the imprisonment of 
the Spanish officers in Florida, "would you send a slave who had 
been abused by his overseer to that very overseer for protection ?" 

Prop. X. — Slaves being objects op property, ir injured by 

THIRD PERSONS THEIR OWNERS MAY BRING SUIT AND RECOVER DA- 
MAGES FOR THE INJURY. 

This is a maxim of the common law with respect to property in 
general, and it may, therefore, be assumed to be the law of all the 
slave-holding states in regard to slaves also. Taken strictly, it does 
not operate as a shield to the slave against corporal aggression, unless 
the violence used is so great as to deteriorate the property of the 
master. J And so a decision of the Supreme Court of Maryland has 
established the law to be in that state: — "There must be a loss of 
service, or at least a diminution of the faculty of the slave for bodily 

* See supra, page 26. f February 27, 1S22. 

% Kentucky is an exception to the generality of this statement. The owner of a 
slave there, by act of Assembly of 1816, may bring an action of trespass against any 
one who shall whip, strike or otherwise abuse such slave without the owner's consent, 
" notwithstanding the slave may not be so injured that the tnaster may lose his or her 
services thereby." 2 Morehead d? Brown's Digest, 1481. 



40 WJIJWN OWNERS MAY HVE. 

laboui', to warrant au action by the master." 1 Jlarris and Johnson^a 
Jleports, 4 ; (JornJ'ule vs. Dale. 

A case, tlie report of wliieli may be found in 2 JJai/'s Reports, 70, 
by the name of Hims White vs. James Chambers, was decided by the 
constitutional Court of Appeals in South Carolina, in the year 17U6, 
by which the master was enabled to sustain his suit against a third 
person, for a corporal injury to his slave, although a loss of service was 
not aUecjed in the declaration. The following is the statement prefixed 
to the case by the reporter: — '• {Special action in the case for beating 
the plaintiff's negro man. It came out in evidence on the trial that 
the negro in question had the care of his master's fishing-canoe on 
Sullivan's Island, when the defendant went down to the landing-place, 
where it was, and said he would take it and go out fishing in it. The 
negro told him he could not have it, as his master had given him orders 
to let no one take it away, as he was in the constant habit of using it 
liimsolf, and he expected him down every minute to go out in it. The 
tlefemluut, however, persisted in taking it away, and the neijro in ohey- 
inij his master's orders in refusing to let him have it : upon which some 
high words passed between them on both sides, whereupon the defend- 
ant struck him a blow with his fist, and then took up a paddle, tvhich 
was in the canoe, and knocked him down, and afterwards beat him very 
seoerely, which laid him up for several days, before he was able to yo 
about his master's business ayain." Having given the reader this state- 
ment of tlie facts in the case, it is fit that I should gratify his curiosity by 
a faithful record of the verdict. He will then be enabled to form some 
estimate of the degree of protection which is derived by the slave from 
liis owner's right of action against third persons for brutal violence 
to the slave. The jury "found a verdict for five pounds sterling, and 
costs of suit " ! I 

Let not the jury only be reproached with this verdict. A whole 
community are implicated with them. A section of the negro act of 
17-10, which was in force when this decision was given, and is, indeed, 
the law of South Carolina at the present kour, has fixed a measure 
of damages Avhich fully sustains the conduct of the jury. "If any 
negro or other slave, who shall be employed in the lawful business or 
service of his master, owner, overseer, &c. shall be beaten, &c. by any 
person or persons not having sufficient cause or lawful authority for 
so doing, and shall be maimed or disabled by such beatiny from perform- 
ing his or her work, such person or pei'sons so offendiny shall forfeit 
antl pay, to the owner or owners of such slave, the sum of fifteen 
shitlinys current money, per diem, for every day of his lost time, and 
also the charge of the cure of such slave." 2 Brevard's Diyest, 2ol-2. 

I do not find any provision on this subject among the laws of the 
other slave-holding states, except in Louisiana and Kentucky, (see 
ante, pp. 38, 30,) in the former of Avhich an act of Assembly, in most 
respects analogous to that which I have cited from the code of South 
Carolina, has been passed witli a special penalty imposed for the 
benefit of the master, where the injury to the slave is of a most aggra- 
vated character. For "if the slave" (maimed, cj-c.) " be forever rendered 
unable to work, the offender shall be compelled to pay the value of said 
slave, according to 4,ho appraisement made by two freeholders, ap- 



SLAVERY IS PERPETUAL. 41 

pointed by each of the parties ; and the slave thus disabled shall be 
forever maintained at the expense of the person who shall have thus 
disabled him, which person shall be compelled to maintain and feed^ 
him agreeably to the duties of masters toward their slaves, as ordered 
by this act." 1 3Iartm^s Digest, 630-2, 

From the abstract of the cases decided in Maryland and in South 
Carolina, and especially from the laws which I have here quoted, it 
will be perceived that the protection of slaves from the violent and 
wanton assaults of those not their masters, &c, is scarcely to be looked 
for, as a consequence of the master's right to be compensated for the 
deterioration of his property in the slave. The purpose of these laws 
is not, in truth, the protection of the slave, but the vindication of the 
master's rights of property.f And yet in slave-holding countries this 
right of action in the master is not unfrequently proclaimed to be a 
sufficient protection to the slave. It would be more just to say that 
it is the only one ivhich is accorded to him. 

Prop. XI. — Slaves can make no contract. 

Besides such of the laws referred to under Proposition V. of this 
chapter as relate to this proposition, it may be added that a slave 
cannot even contract matrimony, [Civil Code of Louisiana, art. 182,) 
the association which takes place among slaves and is called marriage 
being properly designated by the word contubernium, — a relation which 
has no sanctity, and to which no civil rights are attached. J "A slave 
has never maintained an action against the violator of his bed. A 
slave is not admonished for incontinence, or punished for fornication 
or adultery ; never prosecuted for bigamy, or petty treason for killing 
a husband being a slave, any more than admitted to an ajjpeal for 
murder." Opinion of Daniel Dulany, Esq., Attorney- General of Mary- 
land, 1 Maryland Reports, 561, 563. 

Prop. XII. — Slavery is hereditary and perpetual. 

This is not merely a corollary from the clause of the act of Assembly 
which was quoted near the beginning of this chapter, but is the effect 
of an express declaration found in the same act of Assembly, which, 
having been already transcribed, need not be here inserted. 

That a child should be deprived of any of its natural rights in con- 
eequence of its parents' misfortunes is surely not the deduction of 
reason from any known principle applicable to the social condition of 
man. Yet the hereditary nature of slavery has probably been an inci- 
dent of the institution in every age and among every people where 
the institution has been tolerated.^ It was so with the Hebrews, both 

* See, as to food and clothing, supra, pages 16-19. 

•j- By an extreme refinement of this principle, it has been held in North Carolina 
that " patrols are not liable to the master for inflicting punishment on his slave, unless 
their conduct clearly demonstrates malice against the master." 1 IlaiuJc's Keports, 
418 ; Tate vs. O'Neal. 

% In accordance with this, it has been held in North Carolina by the Supremo Court, 
that a slave, who was the imfe of another slave, might give evidence against him, even 
in a capital case, ^iate vs. Smith, a slave, 2 Dev. <£■ Bat. 177. 

I In Massachusetts, " several negroes born in this country of imported slaves de- 
manded their freedom of their masters by suits at law, and obtained it by judgments 

4* 



42 HEBREW SLAVERY. 

before and after tlie Mosaic dispensation; it was so witli iliera during 
their bondage to the Egyptians ; the Helots of Sparta and the Roman 
slave suffered the like injustice. 

But the perpetuity of slavery — the natural product of its inheritable 
quality — received a check by the Ilosaic polity. The Israelites having 
been miraculously freed from theyoke of the Egyptians, it was ordained, 
in unequivocal terms, that a Hebrew should not retain his brother 
whom he might buy as a servant more than six pears against his consent, 
but that in the seventh year he should go out free, for nothing. If he' 
came by himself he should go out by himself; if he were married 
(when he came) his wife should go out with him. Exodus, ch. 21, ver. 
2, 3 ; Deut. ch. 15, ver. 12 ; Jeremiah, ch. 34, ver. 13, 

Besides this important regulation, Hebrew slaves were, without ex- 
ception, restored to freedom by the jubilee. I am aware that the 
authority of respectable names may be avouched for the opinion that 
the benefit of the jubilee, as to this particular, was enjoyed by all 
classes of bondmen, according to the literal import of the command: — 
"Ye shall hallow the fiftieth year, and p7'oclaim liberty throughout all 
the land, and unto all the inhabitants thereof," Leviticus, ch. 25, 
ver. 10. With an anxious desire to sustain this opinion, if tenable, it 
appears to me that not only was such a privilege not required by the 
general purpose for which the jubilee was appointed, but the positive 
language of the 44th, 45th and 46th verses of the same chapter forbid 
such an inference. "The condition of /ore^V/^z slaves was less favour- 
able. Whether captives taken in war, purchased, or born in the 
family, their servitude v^as perpetual." 1 Ililmaji's History of the Jews^ 
book 3, p. 124, 1st Lond. edit. 

It seems, however, highly probable that the term perpetual, in its 
proper and absolute sense, was not applicable to the slavery by the 
Israelites even of the heathen nations. For the command was given to 
Abraham, and was not abrogated by Moses: — " He that is born in thy 
house, and he that is bought ivith thy money, must be circumcised," 
Genesis, ch. 17, ver. 13, Jewish commentators agree that this com- 
mand was strictly construed and carried faithfully into practice. 
Thus, it is said by 3Iaimonides, "Whether a servant be born in the 
power of an Israelite, or whether he be purchased from the heathen, 
the master is to bring them both into the covenant. But he that is 
born in the house is to be entered upon the eighth day, and he that is 
bought with money on the day on which the master receives him, un- 
less the slave be unwilling. For, if the master receive a grown slave, 
and he be unwilling, his master is to bear with him, to seek to win him 
over by instruction, and by love and kindness, for 07ie year; after 
which, should he refuse so long, it is forbidden to keep him longer 
than the twelvemonth, and the master must send him back to the 

of the courts." See WincTienden vs. Hatfield, d-c., 4 Massachusetts Jiqwrfs. 128. But 
these cases can hardly be ranked as exceptions to the general allegation in the text. 
They appear to have heen the effect of collusion between the masters and the slaves. 
For, according to Chief-.Tustice Parsons, " the defence of the master was faintly made; 
for such was the temper of the times that a restless discontented slave was wm-th 
little, and, when his freedom ivas oUained in a course of legal jyroceedings, the master was 
not holdenfor his future support if he became poor." 



CHRISTIAN DUTY. 43 

strangers from whence lie came ; for the GOD of Jacob will not accept 
any other than the -worship of a willing heart." Maimon., Hilcoth 
Miloih, chap. 1, sect. 8. See GilVs Exposition of the Old and New 
Testaments, ^c. 

And, according to Genesis, ch. 17, ver. 10, compared with Romans, 
ch. 4, ver. 11, by the rite of circumcision, the recipient was conse- 
crated to the service of the true GOD. See 3 Home's Introd. to Orit. 
Study of the Holy Scriptures, 413. And on such a one were, in con- 
sequence, conferred nearly all the rights of a son of Abraham. 
♦* Although," says the respectable author last quoted, " the constitu- 
tion of the Jewish polity, and the laws of Moses, allowed no other 
nations to participate in their sacred rites, yet they did not exclude 
from them such persons as were willing to qualify themselves for con- 
forming to them. Hence, they admitted proselytes who renounced 
the worship of idols and joined in the religious services of the Jews, 
although they were not held in the same estimation as Jews by birth, 
descent, and language." Ibid. 255. " When a stranger will sojourn 
with thee, and keep the passover to the Lord, let all his males be cir- 
cumcised, and then let him come near and keep it, and he shall be 
as one that is born in the land." Exodus, ch. 12, ver. 48. On this paa»- 
sage in Exodus Dr. Jennings observes these two things : — " Fii-st, that 
when a man became a proselyte, all his males were to be circum- 
cised as well as himself, whereby his children were admitted into the 
visible church of GOD, in his right as their father. Secondly, that 
upon this he should be entitled to all the privileges and immunities of the 
Jeioish church and nation, as well as be subject to the whole law. He 
should be as one born in the land.'''' Ridgely^s Body of Divinity, vol. iv. 193, 
note by Dr. Williams.* 

Notwithstanding the bearing of these authorities, I would not be 
thought to speak of the conclusion which they tend to establish with 
a confidence approximating to positiveness. The dealings of the Al- 
mighty with the heathen nations, through the instrumentality of his 
chosen people the Israelites, is a subject not to be discoursed upon 
with the freedom of ordinary criticism. And on this point especially — 
what effect had proselytism on the condition of heathen slaves held by 
Hebrews — there is an obscurity which leaves the mind unsatisfied. 

But whether or not the proselyte heathen slave became entitled to 
freedom at the jubilee is of no importance to us, so far as we are con- 
cerned in respect to our duties to the enslaved. As to us, there exists 
no people who can be called heathen, in the sense in which that appella- 
tion was used by the Israelites. The master and the slave are of the 
same class — are both Gentiles. The only legitimate inference, there- 
fore, which, in a comparison with the Mosaic regulations, analogy fur- 
nishes, is, that our conduct to slaves should be the same as was the 
conduct of the Israelites to Hebrew slaves. 



* The edition of the work from -which the above is extracted was published under 
the sanction (as the title-paoie affirms) of Jinnes P. Wilson, D.D.. and the note is of 
his selection, and consequently may be considered as speaking his sentiments. 



CHAPTER III. 

OF THE CONDITION OF THE SLAVE CONSIDERED AS A MEMBER OF 
CIVIL SOCIETY. 

To speak as a slave as a member of civil society may, by some, be 
regarded a solecism. Such a condition, however, is recognised by 
the laws of the slave-holding states. To what extent, and for what 
purpose, it is recognised, will be sufficiently manifested in the course 
of this chapter ; which, for the sake of perspicuity, will be arranged 
and examined under the following titles : — 

I. A slave cannot be a witness against a white person, either in a 
civil or criminal cause. 

II. He cannot be a party to a civil suit. 

III. The benefits of education are withheld from the slave. 

IV. The means for moral and religious instruction are not granted 
to the slave ; on the contrary, the eflforts of the humane and charitable 
to supply these wants are discountenanced by law. -^ 

V. Submission is required of the slave, not to the will of his master 
only, but to that of all other white persons. 

VI. The penal codes of the slave-holding states bear much more 
severely upon slaves than upon white persons. 

VII. Slaves are prosecuted and tried upon criminal accusations in 
a manner inconsistent with the rights of humanity. 

I. A SLAVE CANNOT BE A WITNESS AGAINST A WHITE PERSON, EITHER 
IN A CIVIL OR CRIMINAL CAUSE. 

I have had occasion very frequently to advert to this subject, as the 
cause of the greatest evils of slavery. Acts of Assembly, apparently 
intended to give protection to the slave from his master's cruelty, 
have been adduced, and yet shown to be altogether nugatory in con- 
sequence of the rule of law which forms the title of this section. In 
truth, in our slave-holding states this exclusion is not confined to the 
evidence of slaves ; but natives of Africa, and their descendants, what- 
ever may be the shade of their complexion, and whether bond or free, 
are under the like degrading disability.* In a few of the slave-holding 
states the rule derives its authority from custom; in others the legis- 
lature have sanctioned it by express enactment. In Virginia there is 
an Act of Assembly in these words : — " Any negro or mulatto, bond 
or free, shall be a good witness in pleas of the commonwealth for or 
against negroes or mulattoes, bond or free,, or in civil pleas where free 
negroes or mulattoes shall alone be parties, and in no other cases what- 
ever:' 1 R. V. C. 422. Similar in Missouri ; 2 Missouri laws, 600. 
In Mississippi ; Mississippi Rev. Code, 372. In Kentucky ; 2 Lit. ^J- 
^tt7. 1150. In Alabama ; ^owZw?m's Z>2>. 627. In Maryland ; Mary- 
land Laws, Act of nil, ch. 13, ^§ 2^3, and Act of 11 'o\ , ch. 14, §4. 
In North Carolina and Tennessee; Act of 1177, ch. 2, g 42. 

* In Texas this restriction i? confined to such persona to the third generation only. 
Texas Dig. 219-^20. "' 

44) 



NOT WITNESSES AS TO WHITES. 45 

Sucli being the law it requires no extraordinary perspicacity to 
pronounce that its effects must be most injurious to the unhappy 
victim of slavery. It places the slave, "who is seldom within the view 
of more than one white person at a time, entirely at the mercy of 
this individual, without regard to his fitness for the exercise of power, 
— whether his temper be mild and merciful, or fierce and vindictive. 
A white man may, with impunity, if no other white be present, torture, 
maim, and even murder his slave, in the midst of any number of 
negroes and mulattoes. Having absolute dominion over his slave, 
the master or his delegate, if disposed to commit illegal violence upon 
him, may easily remove him to a spot safe from the observation of a 
competent witness. Indeed, it is probable few white persons ordi- 
narily reside upon the same plantation, since I find in most of the 
slave-holding states, the owners of slaves are compelled by a conside- 
rable penalty "to keep at least one white man on each plantation to 
which a certain number of slaves is attached," — a law which would 
not have been necessary unless a contrary practice was prevalent. 
See Prince's Dig. 455, ^'c. 

Plain and conclusive as this reasoning must be to the mind of any 
candid person, I think it best, nevertheless, to corroborate it by the 
direct testimony of several distinguished persons, whose means of in- 
formation entitle them to speak with authority. Sir William Young, 
then Governor of Tobago, and an advocate of slavery, thus expressed 
himself in 1811 : — "Instances of bad treatment and cruelty, and of 
unjust and immoderate punishment of slaves, I think occur exclu- 
sively within the narrow trading of household circle of unattached 
slaves ; and, I am sorry to say, have frequently been reported to me 
with circumstances of atrocity to be believed, though (for reasons 
which I shall give) not to be proved, against lower white or coloured 
people domineering over from two to ten or more wretched beings, 
their slaves. In such cases, what protection by law have the slaves 
against the abuse of power over them by Europ<}ans or other free 
people ? 1 think the slaves have no protection. In this, and I doubt 
not in every other island, there are laws for the protection of slaves, 
and good ones ; but circumstances in the administratioji of whatever laxo 
render it a dead letter. When the intervention of the law,'" he continues, 
"?s most required, it will have the least effect ; as, in cases where a vin- 
dictive and cruel master has care to commit the most atrocious cruel- 
ties, even to murder his slaves, no free person being present to 
WITNESS THE ACT. There appears to be a radical defect in the 
administration of justice throughout the West Indies, in tohatever case 
the wrongs done to a slave are under consideration ; or rather, that justice 
cannot in truth be administered, controlled as it is by a laio of evidence 
ichich covers the most guilty European with impunity, provided that ichen 
having a criminal intent he is cautious not to commit the crime in the pre- 
sence of a free witness. I should consider it as inconsistent with the 
respect and deference I bear to the sagacity and wisdom of the august 
body for whose use this report is framed, to idly enlarge it with the 
enumeration of humane laws for the protectionvf slaves, all rendered 
nugatory by the conditions of evidence required in their administra- 
tion." See for this extract from Sir William Young, Report, &c., a note 



46 NOT WITNESSES AS TO WHITES. 

to page 1G7 of Stej^hen's West Indian Slavery, ^c, pages 168-9. Mr. 
Stephen has collected the statement of many others holding official 
stations in the British West India colonies all concurring in relation 
to this one point : — the inefficacy of all laws made for the protection 
of slaves, in consequence of the rejection of the testimony of slaves. 
I avail myself of an additional citation from this source. The Chit f 
Justice,* &c., of the island of St. Vincent gives the following answer 
to parliamentary inquiries proposed to him in the year 1791 : — " The 
only instances in which their (slaves') persons appeared to be pro- 
tected by the letter of the law, are in cases of dismemberment and 
muiilation; and in these cases, as the evidence of slaves is never admitted 
against a white man, the difficulty of establishing the facts is so great that 
ichite men are in a manner put beyond the reach of the law.^'' 

I subjoin a further proof, not that I consider the present topic 
difficult of explanation, but because what I now adduce is borrowed 
from the authentic records of a slave-holding state of our own country. 
The negro act of South Carolina contains the following preamble to 
one of its sections : — " Whereas, by reason of the extent and distance 
of plantations in this province, the inhabitants are far removed from 
each other, and many cruelties may be committed on slaves, because 
no zvhite personf may be present to give evidence of the same," &c. 2 
Brevard's Big. 242. 

After such admissions of the evil of this law, we are naturally 
induced to inquire what reasons have led to its adoption, and especi' 
ally what can justify its continuance. 

It is alleged by its advocates that it is coeval with the institution of 
slavery ; and they add moreover, as if this circumstance were of great 
moment, that slavery has existed since the time of Noah. 2 Brevard's 
Dig. 222, note. That servitude under some form is of a very remote 
antiquity, there can be no doubt ; but it cannot be established it is 
believed, by proofs at all worthy of reliance, that the rejection of the 
testimony of the slave has always been a concomitant evil. J If indeed 

* Drewry Ottley, Esq. 

f A similar state of things appears to have existed in 1826, in this state. In State 
vs. Eaines, 3 ilcCord's iJepo?-^, 546, the court says, "The slave and his owner or 
possessor, is perhaps as much secluded from the view of other white persons now as 
formerly. lie is still even now for days aiid weels, in many parts of the country, 
left entirely with the master or overseer." 

X Josephus, in hook 4, chap. 8, g 15, of his Antiquities of the Jews, ( WJnston^s trans- 
lation,) states the law on this subject dififerontly from what we find it recorded in the 
Siicred Scriptures of the Old Testament. The passage in Josephus stands thus : — 
" I.et not a single witness he credited, but three or two at least, and those si;ch 
whofe testimony is confirmed by their good lives. But let not the testiiiioiiy of women 
he admitted, on account of the levity and boldness of their sex; nor let sei-raiHs be ad- 
mitted, 071 account of the'ignohility of their soul, s^ince it is probable that they may not 
sjKak the truth, either out of hope of gain or fear of punishment." The authority of 
Josephus cannot be set in competition with that of the Sacred Scriptures as they 
have descended to us. And, though he professes to give the law as established by 
Moses and left by him in writing, without any ornament or addition, yet it requires 
but little attention to discover that instead of the Pentateuch itself, he has furnished 
a commentary upon it by the Scribes and Pharisees, whose " traditions,'' as we are 
told by unerring wi.^dom, had made " void the law." See note to Winston's transla- 
tion on. the text of Josephus above cited; also, Sd volume of Home's Introduction to a 
Critical Study of the Iloly Scriptures, 112, (American edition.) When, therefore, we 
find the law of Moses, according to our canon, prescribes numerous rules for the 
treatment of servants or slaves, regulates with considerable minuteness judicial 



NOT WITNESSES AS TO WHITES. 47 

it could be shown that such had, in all ages, been the misfortune of 
the oppressed, it would not surely, on that account, carry conviction 
of the justice of the rejection to the mind of any one who rightly 
weighs the claims of humanity, and who believes that " to do justly 
and love mercy," are duties of inflexible and perpetual obligation, 

Villanage, as it existed in England, furnishes no authority for the 
universal application of this rule. A villain was a good witness, in 
civil cases, against any one except his lord ; see Bro. abridg. tit. Vil- 
leinage, 66; and, as he m.\g\ii prosecute his lord in the king's name for 
violence done to his person, it is right to presume in such a case he 
must have been admitted as a witness against him also : Coke Litt. 
124, a; Dulany's Opinion. 1 Maryland Reports, 561; and, without 
doubt, in criminal cases generally, it was no exception to a witness 
that he was a villain or bondman. Ilawkin^s Pleas of the Crown, hook 
2, chap. 46, I 28; Coke Litt. 126, a. 

We must have recourse to the civil law for its probable origin. 
" The general rule of that law certainly was that a slave could not 
be a witness, though there were exceptions to it, founded in reason 
and policy; for men of that condition might be examined when the 
welfare of the state, in cases of weight and diflBculty, required such 
a departure from general principles, or when other evidence was unat- 
tainable." Stephen's West India Slavery, 171, citing Voetus' Commentary 
on the Pandects. This latter exception, it is obvious, destroys the rule 
if we are to understand by it that a slave might be examined, in the 
defect of other proof, for the inculpation of any offender against the 
laws. And such I suppose to be the true meaning, since "slaves 
might always (ainong the Romans) induce an investigation, by flying 
to the statutes of the princes:" Cooper's Justinian, A12.; a privilege 
which would be of but little value, unless the slave could be examined 
as a witness against his injurer; and if thus admissible in his own 
case, with much more propriety could he be heard on behalf of third 
jicrsons, where feelings of interest would not operate to bias him. 

It may be safely averred, I believe, that this rule of evidence, to the 
extent in which it obtains in our slave holding states, cannot challenge 
for its support the authority of any country, either ancient or modern. 
For it must not be forgotten that it is not the evidence of slaves only 
which is rejected by it; it applies equally to coloured persons, or 
rather to the descendants of Africans, as well to those who are//vc 
as to those who are slaves. This being the case, I shall briefly dis- 
cuss the propriety of it in its whole compass."^ And first let us see 

j^roceedings in general, and makes particular mention of the number of witnesses 
required to establish the truth, and yet is entirely silent as to the competency of 
women and servants as witnesses, it is fair to presume that no such disqualifications 
were ever sanctioned by the Jewish lawfjiver. S'e Deut. ch. 17, v. 6; and cli. 19. r. 15, 
ef siq. The judges, indeed, were expressly empowered to decide upon the credibility 
of witnesses, — to proceed in a summary manner against those who testified falsely, 
aud to inflict retaliatory punishment upon them ; from which I infer that both the 
ai'cuser and accused had a right to produce their witnesses and compel the hearing 
of them, leaving the judges, like our juries, to decide upon the weight of their 
testimony. 

='= In Virginia, a very early statute places the exclusion on the ground that none 
but Christians should be witnesses; and even among those a certain description of 
person.s wore excluded. The statute I allude to, runs thus : — Popish recusants con- 



48 NOT WITNESSES AS TO WHITES. 

upon what reason it is founded, in its application to slaves. It lias 
been said the admission of such testimony is dangerous to the lives 
and fortunes of the whites. This charge, if adopted in its most ob- 
vious sense, would seem to imply the total destitution of veracity in 
the slave. But this conclusion must be too comprehensive, since 
even slaves are competent witnesses, not only against each other, but 
against free persons of colour, without any restriction. Law of Vir- 
ginia, 1 Rev. Code, already cited; Prince's Digest, 44G; HaywooiVs 
Manual, 523; Maryland Laws, act o/1751, chap. 14, ^ 4, ^-c. ^-c. 

If the objection is restrained to the testimony of the slave against 
his master, it presumes the predominance of the utmost depravity of 
heart in the slave, — a depravity which, in the gratification of a spirit 
of revenge,* would disregard the strongest moral sanctions. To con- 
cede this is to impute a highly criminal negligence to the master; foi', 
having the absolute dominion of the slave, the dictates of humanity, 
as well as the plain precepts of the gospel, demand the bestowal of 
such attention to the religious instruction of the slave as, in ordinary 
cases, would prevent or extirpate such excessive malignity. 

But, it is said, "the hope of gain," or "the fear of punishment," 
would probably induce the slave to testify falsely. "The hope of 
gain" will be felt chiefly, if not exclusively, in investigations touching 
the master's interest, — an objection which, if it be a valid one, de- 
grades the master far beloAV the level of the suborned slave. "The 
fear of punishment" is a more embarrassing difficulty, — so much so, 
indeed, that it would perhaps be proper, as a general rule, to exclude 
such testimony when offered on behalf of the master. 

To every other objection except the last, under the peculiar restric- 
tion there mentioned, trial by jury is an ample refutation. It is 
scarcely conceivable that a being so degraded as a slave in the eyes 
of those who usually compose juries in the slave-holding states should, 
as a witness, operate serious injustice to a ivhite man. Labouring 
under the prejudice with which he is likely to be viewed by slave- 
owners, it is fair to infer that, unless fortified by other uncxccptionahle 
witnesses, or by strong circumstances, a slave's testimony would 
ordinarily go for nothing. But, as has been well remarked by Mr. 
Stephen, ." How many instances are there in which the evidence of a 

vict, negroes, mulattoes and Indian servants, and others not being Christians, shall 
bo deemed and taken to be persons incapable in law to be witnesses in any case 
whatsoeTer." Sec '6 Henniyig's Statutes {of Virginia) at large, 298, act of October, 17U5, 
{Wi Anne.) sect. 3L In Maryland, papacy, of course, is not subjected to the ban, but 
the like intolerance is nevertheless evinced: — "No negro or mulatto slave, free 
negro, or mulatto born of a white woman, during his time of servitude by law, or 
any Indian slave or free Indian natives of this or the neighbouring provinces, (shall) 
be admitted and received as good and valid evidence in law, in any matter or thing 
whatsoever depending before any court of record, or before any magistrate within 
this province, wherein any Christian white person is concerned." Acts of 1717, chap. 
13, 2 2. 

t And yet revenge does not seem to be more prevalent with blacks than with 
whites. Clarkson, whose labours on behalf of the negro are so well known, makes 
the following memorable declaration :— " That he had not, after a diligent and candid 
investigation of the conduct of emancipated slaves, under a great variety of circum- 
stances, comprising a body of more than live hundred thousand, a considerable pro- 
portion of whom had been suddenly enfranchised, found a siWc instance of revenge 
cr abuse of liberty." 



NOT WITNESSES AS TO WHITES. 49 

witness, who is liable in a much higher degree to distrust, is essential 
to the interests of justice, and may furnish a satisfactory ground of 
decision, even for the purposes of conviction in capital cases ! Often 
is a necessary link in the chain of circumstantial evidence wanting, 
which the vilest man on earth might credibly supply, because the 
other circumstances have previously raised the highest presumption 
of its truth, and of its being a truth, too, within the knowledge of that 
witness. Sometimes, also, testimony which is very low in credit may 
justly derive great weight from the consideration that, if untrue, the 
opposite party possessed the means of refuting it by satisfactory 
proof, which he has not produced ; and sometimes it is satisfactory, 
because it is strongly corroborated by other evidence, though neither 
would have separately sufficed," The examination of accomplices in 
crime against each other, instances of which are of daily occurrence 
in criminal courts, is an illustration of these principles. 

In the ruder ages of society, courts of law viewed the competency of 
witnesses with great jealousy. Persons were prevented from giving 
testimony then, on objections which are now treated as of insufficient 
validity. For this improvement in judicial administration we are 
principally indebted to the ascertained practical excellence of trial 
by jury. Besides, hvisband and wife, who, in general, from motives 
of public policy and humanity, are forbidden or excused from testify- 
ing for or against each other, may, under some circumstances, from 
necessity, in legal contemplation, — i. e. to prevent an ejitire failure of 
Justice, — be heard even in his or her own behalf. Such is the case 
vfhere personal violence has been oflFered by the one to the other. The 
grant of a like privilege to the slave against his master, in particular, 
may be supported by reasons at least equally forcible. And such a 
i-ight it seems probable obtained in Massachusetts, as far as we are 
informed, without inconvenience ; on the contrary, I have no doubt, 
with decisive public advantage. See supra, note to page 35. 

If trial by jury is a sufficient answer to the several objections 
against the admission of a slave's testimony, with much greater force 
may it be urged in reference to the competency of the free negro. 
Indeed, it is to me inconceivable upon what plausible ground the 
unqualified and universal rejection of the latter as a witness can be 
supported. It is without the precedent of any other country, it is 
believed, whether civilized or savage. The freed man was a compe- 
tent witness by the civil law. He might even give evidence of what 
came to his knowledge before his enfranchisement,— a privilege not 
allowed by the same law to the man of full age in respect to what he 
learned during his nonage. Stephen 181-2, citing Voetius ad Pand. lib. 
22, tit. 5, sect. 2. In the West Indies, free negroes are received us 
witnesses in civil actions against white persons, [Stephen, 182,) a dis- 
tinction of immense advantage, especially in a trial for freedom, 
where it can hardly be expected a white person would be able to 
testify as to the pedigree of a black. 

While this unqualijied and universal exclusioji of the evidence of col- 
oured persons prevails, it can be of but little use to enact severe pen- 
alties against kidnapping. Secrecy in this crime, in. particular, will, 
as far as it is in the power of the perpetrator, be preserved ; and if 

5 



50 NOT WITNESSES AS TO WHITES. 

the free uegro — the injured party — cannot be beard against the offend- 
er, from what other source can satisfactory evidence be expected ? 
But change the law : admit him as a witness, and kidnapping of all 
crimes would be hue easiest of detection.* 

Confessedly great as are the evils of this harsh regulation, it will 
naturally be asked if a remedy of some description has not been at- 
tempted. To this it may be answered, that a preposterous and wholly 
inefficacious one, as may be easily demonstrated, has been devised in 
South Carolina and imitated in Louisiana. Having thus characterized 
it, it is fit I should exhibit it to the reader, that he may judge for 
himself; and for this purpose I give the section cf the act of Assem- 
bly in which it is found, without abridgement: — "Whereas, by rea- 
son of the extent and distance of plantations in this province, the 
inhabitants are far removed from each other, and many cruelties may 
be committed on slaves because no white person may be present to 
give evidence of the same, unless some method be provided for the 
better discovery of such offence, and as slaves are under the govern- 
ment, so they ought to be under the protection of masters and mana- 
gers of plantations, Be it enacted, That if any slave shall suffer in 
life, limb or member, or shall be maimed, beaten or abused contrary 
to the directions and true intent and meaning of this act when no 
white person shall be present, or being present shall neglect or refuse 
to give evidence, or be examined upon oath concerning the same: in 
every such case the owner or rather person who shall have the care 
and government of such slave, and in whose possession or power such 
slave shall be, shall be deemed, taken, reputed and adjudged to be 
guilty of such offence, and shall be proceeded against accordingly 
without further proof, unless such owner or other person as aforesaid 
can make the contrary appear by good and sufficient evidence, or shall 
by HIS OWN OATH dear and exculpate himself ; which oath every court 
where such offence shall be tried is hereby empowered to administer, 
and to acquit the offender if clear proof of the offence be not made by 
tiro witnessess at least," 2 Brevard's Dig. 242 

The reader has probably anticipated my objections to the extraor- 
dinary provisions of this law. That the slave population were sub. 
jected to many cruelties, as is set forth in the preamble, in conse. 

* Too much force cannot be given to this argument. Kemote as is the < ity of 
Philadelphia from those slave-holding states in which the introduction of slaves from 
places within the territory of the United States is freelj' permitted, and lohere als^> 
the mari.et is lempting, it has been ascertained that inoj-e than thirty free coloured 
persons, mostly children, have been kidnapped here and carried away within the last 
two years. Five of these, through the kind interposition of several humane ^entlo 
men, have been restored to tbeir friends, though not without great expense and 
ilifficulty ; the others are still retained in bondage, and if rescued at all it must be 
by sending white witnesses a journey of more than a thousand miles. The costs 
attendant upon law-suits under such circumstances, will probably fall but little 
short of the estimated value, as daves, of the individuals kidnapped. That very 
-many free negroes have been kidnapped in non-slave-holding states admits of but 
little doubt. Within the last few years two notorious cases — those of Rachd and 
Eliza'Mh Parler. sisters, born and brought \ip to full womanhood in Chester 
county. F'eniisylvania — may be meuiioned. With what difficulty and expense were 
they at length re.-cucd and restored to freedom ! 

The interesting book, ^* Twelve Years a Slave, dc, of Solomon NorUirup, who was 
kidnapped at Washingtoa City, furnishes another moot memorable example. 



EXCULPATORY OATH. 61 

quence of the exclusion of their testimony against their oppressors, I 
have no doubt: and that the legislatures were fully convinced of this 
I consider to be equally clear. But it is by no means clear that a 
remedy of the mischief was intended by the enactment of this section. 
It would detract from the intellectual character of the legislature to 
suppose so. Could it be reasonably expected that the presumption of 
guilt, which the act authorizes to be made, would lead to a convic- 
tion, when the party could purge himself of the accusation brought 
against him by his own oath ? Of a crime which could be satisfied by 
a small pecuniary fine, perhaps it sometimes might ; such instances, 
however, one white person only in general being on the plantation, would 
seldom be brought to the knowledge of the magistrate. But would 
the man xvicked enough to commit murder, hesitate to screen himself 
from its penalties by a crime not more heinous certainly than that 
which he would thus conceal?* But this is a view of the law far 
more favourable than its true construction authorizes. For it is in 
terms declared that the offender shall be acquitted upon his own oath 
of innocence, if clear proof of his guilt be not made by two loitnesscs at 
least; thus, in fact, introducing a modification of the former law, not 



* No one, I believe, will question the truth of this as a general remark. It is Tiot, 
therefore, for the purpose of fortifying it, that I refer to a case, reported in the 
South Carolina reports of judicial decisions, in which the exculpatory oath was offered 
to be made by a person whom the court decided not to be within the benefit of the 
act, and who was, immediately afterwards, upon good evidence, found guilty of man- 
slaugUer. See The State vs. Welch, 1 Bay's Reports, 172, 

I subjoin a later case, a. d , 1826, from the judicial reports of the same state, in 
which, notwithstanding by the confession of the prisoner he had been guilty of a 
most cruel murder, yet he offered to exculpate himself by his own oath. The court 
below refused to permit him to do so, and the jury found him "guilty of man- 
slaughter, and recommended him to the mercy of the court." 

The statement of the facts is in the words of the judge before whom the case was 
tried : — "On the trial of the case, the declarations of the prisoner were given in evi- 
dence, from which it appeared that the prisoner was taking the negro from Chester 
jail to Columbia, at the request of his oioner, William Gray. That the negro had 
broken open Wall's store, in Columbia, and stolen money, and had run away; that 
he was a bad negro, and had been a runaway, and had been shot and had the shot 
still in him. That the negro turned sullen and refused to go farther, and the pri- 
soner whipped him to make him go along, and for no other purpose, and gave him, 
as the prisoner said,^t'e hundred lasJies. 

'• Thau when the prisoner found he could not make the negro go along by whip- 
ping, he tied the negro"s legs to prevent him from going off until the prisoner could 
go and get assistance. That the prisoner requested two women, at the first house 
down the road, to go back to the negro to prevent any one from cutting him loose. 

'•The witnesses on the part of the state testified that the negro died about eight 
minutes after the two women reached him, and some time before the prisoner with 
two other men returned. That the prisoner bled at the nose, moulli and ears, thoir^h 
there was no bruise or mark of a blow about the head or body. That the negro ap- 
peared to have been severely whipped below the small of the back, and the blood 
appeared in several places, which seemed to have been touched by the end of the 
switches. That several small switches and two or tJiree larger ones lay near, which 
appeared to have been much worn; also a stick with a small end and a larger end 
seemed to have been used." 

For the prisoner, witness testified, " That the prisoner was a hum axe, peaceable 
man. and a man ff good, character." 

'• The court charged that the prisoner toas not guilty of murder, hni was under 
the second count, for killing a slave in sudden heat and 2^assion.'' 

The Cotcrt of Appeals decided that the prisoner was entitled to exculpate himself by 
his own ofitli; and tliat the judge- who tri(!d the case erred in not pcrmitiiug him to do 
so. See 'The Stale vs. Gay Raines, 3 McCvrds Reports, 533. 



52 CANNOT SUE. 

for the protection of the slave, but foe. the especial benefit of a 

CRUEL MASTER OR OVERSEER ! 

ir. — A SLAVE CANNOT BE A PARTY TO A CIVIL SUIT 

It has been shown in a preceding part of the sketch that a slave 
can neither acquire or retain property, as his own, contrary to the 
"will of his master. It results, therefore, that he cannot be a party to 
a civil suit; for there is no species of civil suit which does not, in 
some way, affect property. 

There is, however, an authority, which for the purpose of convenient 
investigation may be classed as an exception to the above rule, given 
by the laws of all the slave-holding states, to persons held as slaves 
BUT CLAIMING TO BE FREE, to prosecutc their claims to freedom before 
some judicial tribwial. I design, therefore, in this place to bring into 
view whatever relates to this subject 

The oldest law of this description appears to have been adopted by 
South Carolina in the year 1740. It begins with what has been 
already extracted, but which, for the sake of perspicuit}', it will be 
proper to repeat: — "Be it enacted. That all negroes, Indians, (free 
Indians in amity with this government, and negroes, mulattoes and 
mestizoes now free, excepted,) mulattoes and mestizoes who now are 
or shall hereafter be in this province, and all their issue and offspring 
born or to be born, shall be and they are hereby declared to be and 
remain forever hereafter absolute slaves, and shall follow the condi- 
tion of the mother, &c., &c. Provided, that if any negro, Indian, 
mulatto or mestizo, or any person oi; persons whatsoever, on his or 
her behalf to apply to the judges of his majesty's Court of Common 
Pleas, by petition or motion, either during the sitting of the said 
court, or before any of the justices of the same court, at any time in 
vacation. And the said court, or any of the justices thereof, shall 
and they are hereby fully empowered to admit any person so applying 
to be guardian for any negro, Indian, nralatto or mestizo claiming his 
or her or their freedom; and such guardian shall be enabled, entitled 
and capable in law to bring an action of trespass, in the nature of 
ravishment of ward, against any person who shall claim property in, 
or who shall be in possession of any such negro, Indian, mulatto or 
mestizo ; and the defendant shall and may plead the general issue in 
such action brought, and the special matter may and shall be given in 
evidence and, upon a general or special verdict found, judgment 
shall be given according to the very right of the cause, without having 
any regard to any defect in the proceedings, either in form or sub- 
stance. And if judgment shall be given for the plaintiff, a special 
entry shall be made, declaring that the ward of the plantiff is free, 
and the jury shall assess damages which the plaintiff's ward hath 
sustained, and the court shall give judgment and award execution 
against the defendant for such damages, with full costs of suit; but in 
case judgment shall be given for the defendant, the said court is hereby 
fully empowered to inflict sucu corporal punishment, not extending 
TO life or limb, on the xuard of the plaintiff, as they in their discretion 
shall think jit. Provided, that in any action or suit to be brought in 
pursuance of the direction of this act, the burden of the proof shall 



SUIT FOR FREEDOM — PENALTY IN FAILURE. 53 

lay lifon the plaintif, and it shall be always presumed that everg negro, 
Indian, mulatto and mestizos, is a slave, unless the contrary he made to 
appear, (the Indians in amity -witli this government excepted, in which 
case the burden of the proof shall be on the defendant.)" 2 Brevard's 
Dig. 229-30. 

In Georgia the act of Assembly of May 10, 1770, is almost literally 
a copy of this of South Carolina. See Prince's Digest, 44G ; 2 Cobb's 
Digest, 971. 

It is impossible for any humane and reflecting person to examine 
the provisions of the above law, without the conviction of its injustice 
and cruelty. The negro, &c., claims to be free; and yet he can bring 
no suit to investigate his master's title to restrain him of his liberty, 
unless some one can be found merciful enough to become his guard- 
ian, subject, in any event, to the expense and trouble of conducting 
his cause, and in case of failure to the costs of suit.* His judges and 
jurors will in all pi'obability be slaveholders, and interested, there- 
fore, in some measure, in the question which they are to try. The 
whole community in wliich he lives may, so few are the exceptions, 
be said to be hostile to his success. Being a negro, &c., by the Avords 
of the act, the burden of proof rests upon him, and he is presu7ned to he 
a slave till he makes the contrary appear. This is to be effected 
through the instrumentality of white witnesses, as has been just 
shown, exclusive of the testimony of those who are not white, even 
though they may be free and of the fairest character. And, lastly, 
notwithstanding all these obstacles to the ascertaining of the truth of 
his allegations, the terror is superadded, should he not succeed in 
convincing the judge and jury of his right to freedom, of an infliction 
of corporeal punishment to any extent short of capital execution, or the de- 
privation of a limb!!! And in Georgia, "should death happen by 
accident in giving this legal (moderate) correction," according to the 
terms of the Constitution already quoted, f it will be no crime ! Such 
legislation forcibly reminds us of the feast of Damocles ; though, in 
all soberness, it may be said the conduct of Dionysius was supreme 
beneficence, compared with the terms of mercy contained in this act. 

The harsh and unreasonable doctrine which presumes every negro, 
&c., to be a slave obtains, I believe, with the single exception which 
will be hereafter noticed, in all the slave-holding states. In Virginia 



* In South Carolina, by an act passed in 1802, " the guardian" (in a trial for 
freedom) *' of a slave," (who may have been ilUgally imported into the state, and is 
on that account, by the same law, declared to be free.) "claiming his freedom, shall 
lie liable to double costs of suit, if his action shall be adjudged groundless ; and shall 
be liable to pay to the bona fide owner of such slave, all such damages as shall be 
ai^sessed by a jury and adjudged by any Court of Common Pleas." 2 Brevard's 
Digest, 260. And in Maryland, the attorney, in a trial for freedom, must pay all 
costs, if unsuccessful, unless the court shall be of opinion that there was probable 
cause fir supposing that the petitioner had a right to freedom. Act of JVov. 1796, 
c/tap. 07, ? 25. And, on such a trial, the master (the defendant) is allowed tiodve 
PKREMPTORy challenges as to the jurors. Ibid, § 24. The same spirit of hostility to 
the claimant for freedom is manifested in Virginia, where, if any person be found 
aidinfi or maintaining a. slave in the prosecution of a suit upon a petition for freedom, 
who --hall fiiil lo establish his claim to freedom, every such person shall be liable to 
the owner in an action on the case for damages. Code of Virginia, (18-49,) p. 465, 

•f i^oe, supra, page 61. 



54 PRESUMED A SLAVE FROM COLO'UR. 

there is no statute to this effect, yet so is the law as established by 
judicial decisions. Thus, where in suits for freedom, brought by 
several persons, whose descent was traced to a free Indian woman, 
and where, as the reporters say, "On the hearing, the late chancel- 
lor,* perceiving from his own view that the youngest of the appellees 
y^ixs, perfectly white, and that there were gradual shades of difference 
in colour between the grandmother, mother, and grand-daughter, 
(all of whom were before the court,) and considering the evidence in 
the cause, determined that the appellees were entitled to their free- 
dom, and moreover, on the ground that freedom is the birthright of 
every human being, which sentiment is strongly inculcated by the first 
article of our political catechism, the Bill of Rights, — he laid it doum 
as a general position, that ivhencver one person chmns to hold another in 
slavery, the onus probandi (burden of proof ) lies on the claimant." Tlie 
Supreme Court of Appeals, to which the case was afterwards carried, 
thought fit, in reviewing the decision of the chancellor, to go beyond 
the accustomed line of its duty, in order to cast a stigma upon the 
just position which had been asserted by him. The following is a 
copy of the final judgment: — "This court, not approving of the 
chancellor's principles and reasoning in his decree made in this cause, 
except so far as the same relates to white j)ersons and native American 
Indians, but entirely disapproving thereof, so far as the same relates 
to native Africans and their descendants, who have been and now are 
held as slaves by the citizens of this state; and discovering no other 
error in the said decree, affirms the same." See the case, Iludgins vs. 
Wright, 1 Ilenning ^' 3Iunford's Reports, 133 to 143. In Maryland, a 
similar decision has been made, 3 Harris S^- McIIenry''s Reports, 501-2, 
case of negro Mary vs. the Vestry of William and Mary's Parish, S;c. ; 
so, in Kentucky, 2 Bibb's Reports, 238, Davis vs. Curry ; and in New 
Jersey, 2 Ilalsted's Reports, 253, Gibbons vs. 3Iorse, (decided Novem- 
ber, 1821.) 

In North Carolina this doctrine iS received with some limitation, 
the presumption being confined to negroes of the whole blood ; while 
those of wu'xcc? blood, mulattoes, mestizoes, ^'c, are presumed free until 
the contrary is proved. The report of the case in which this principle 
is recognised is given in 1 Taylor's Reports, 164, Gobu vs. Gobu. 
The case itself is unique, and on this account, as well as to display 
the sound reasoning (as far as respects the mixed blood) of Chief- 
Justice Taylor^ is transcribed at large. 

f Trespass and false imprisonment. 
Gobu I ^^®'^' ^^^^ the plaintiff is a slave, &c. 
"It appeared in evidence, that the plaintiff, when an infant ap- 
parently about eight days old, was placed in a barn by some person 
unknown, and that the defendant, then a girl of about tioelve years of 
age, found him there and conveyed him home, and had kept posscsr 
sion of him ever since, treating him with humanity, but claiming him 
as her slave. The plaintiff was of an olive colour, beticeen black and 

* The Honourable (^eorc,'e Wythe, one of the signers of the Didaratinn of our Inde- 
pendence. 



LAW OF COLOUR IN NORTH CAROLINA. 55 

ycUoic, hadlo7ig hair and pro7ninent nose.'' These facts were ascertained 
by the court, by proof and inspection; upon -which the judge gave 
the following chai^ge: — "I acquiesce in the rule laid down by the 
defendant's counsel, with respect to the presumption of every black 
person being a slave. It is so, because the negroes originally brought 
into this country were slaves, and their descendants must continue 
slaves until manumitted by proper authority. If, therefore, a person 
of that description claims his freedom, he must establish his right to 
it by such evidence as will destroy the force of the presumption 
arising fi om colour. But I am not aware that the doctrine of pre- 
sumption against liberty has been urged in relation to persons of 
mixed blood, or to those of any colour between the two extremes of 
black and white, and I do not think if reasonable that such a doctrine 
should receive the least countenance : such persons may have descended 
from Indians in both lines, or at least in the maternal ; they mny 
have descended from a white person in the maternal line, or from 
mulatto parents originally free ; in all which cases the offspiing, 
following the condition of the mother, is entitled to freedom. Con- 
sidering how many probabilities there are in favour of tbe liberty of 
these persons, they ought not to be deprived of it upon mere pre- 
sumption ; more especially as the right to hold them in slavery, if it 
exists, is in most instances capable of being satisfactorily proved."* 
While I freely subscribe to the soundness of the views of this dis- 
tinguished jurist in relation to persons of mixed blood, I cannot but 
dissent from the specious reasoning by which it is inferred that every 
black person should be presumed to be a slave. Slavery is an institu- 
tion which nil p7'ofess to disapprove. It violates every man's sense of 
right : it is at variance with the genius of our government. Its ex- 
istence, therefore, in no case ought to be presumed. But more tlian 
this, it is well known that a large number of black persons are entirely 
free, even in the slave-holding states ; the laws of our country recog- 
nise their right to freedom, and the power of the government has been 
wielded for their protection, as citizens, whenever a fit case has been 
brought to public notice. With what propriety of reasoning, then, 
can it be urged that their colour should, in legal contemplation, raise 
a presumption against their liberty ? Even those who think it desirable 
to perpetuate slavery — who think it no evil to degrade and brutify 
a being endowed by his Creator with reason — need apprehend no 
violation of their legal rights of property by a contrary do<3trine. 
What greater difficulty can exist, to satisfy the requisitions of the 
law in regard to the ownership of a slave, than obtains in regard to 
the ownership of ordinary chattels ? Will it be alleged that fraud 
may be perpetrated by transferring a freeman as a slave ? But is not 
an intelligent creature, endowed with the faculty of speech, at all 
times capable of admonishing a purchaser against such a deception ? 
And, when a communication of this nature is made, ought it not to 
be heeded ? 



* The doctrine of this case was afterwards confirmed, fo that it may be considered 
as the settled law of Xorth Carolina, See 2 Haywood's lO'p. 170, and Scotl vs. tVil- 
Uunis, 1 Dcvereux's Hep. 37ti. 



56 FREE MADE SLAVES. 

I am tlio more strenuous in opposition to this doctrine of presump- 
tion against liberty, because it is obviously the fruitful source of the 
abominable crime of man-Rtealing,-~i\. crime wliicli, in all nations, 
seems to have been viewed with abhorrence and visited with severe 
penalties. The wretch who, by art or force, is enabled to exhibit a 
person of African extraction — " with a colour not his own" — in his 
custody, and within the limits of a slave-holding state, is exempted 
from the necessity of making any proof how he obtained him, or by 
what authority he claims him as a slave. Inspection notifies to every 
beholder that the unhappy person said to be a slave is presumed so to 
be by the law of the land ! Supplemental evidence is unnecessary ; a 
forged bill of sale may be a convenience to satisfy the timid and over- 
cautious, but the law — the supi'cmc wisdom of man— deems any thing 
more than colour quite superfluous. Is this just? Does it become a 
free and enlightened people thus to decree ? — thus to injure ? 

By the laws of several of the slave-holding states, manumitled and 
other free persons of colour, however respectable their characters, 
may be arrested when in the prosecution of lawful business, and if 
docnmmtary evidence of their right to freedom cannot be immediately 
produced by them, they are tlirown into prison and advertised as 
runaway slaves. Should no owner — as must always be the case, un- 
less injustice is done— appear within a time limited by law for the 
purpose, the jailor is directed to dispose of them at public auction, as 
unclaimed fuyilive slaves, in order to derive from the proceeds of the 
sale the means of defraying the expenses of their detention in prison. 
The unrighteous doctrine oi presumption from colour steps in and con- 
summates the inii[uity, and the freeman and his posterity are do9med 
to hopeless bondage. See 2 Brevard's JJiycst, 285-G-7 ; Mississippi 
Rev. Code, 376-7: Laivs of Maryland,* act of 1715, [April session,) 



* The laws of Maryland here referred to, having excited much attention, in conse- 
quenco of the arrest and inipi-isonment, in the District of Columbia, of a free blade 
man, a citizcm of the state of New York, named Gilbert Ilorton, I am induced to 
tninscribe them in tliis place. The sixth section of the act of 1715, chap. 44, reads 
thus: ** And for the better discovery of runaways, it is hereby enacted, Ac, that any 
person or i)i'rsons whatsnever within this province, travelling out of the county where 
he, she or they shall reside or live, without a pass under the seal of the saitl county, 
for which they are to pay ten pounds of tobacco, or one shillint; in money, such per- 
son or persons, if apprehemled, not heinr/ sirtyuirnttii loiotvii or atjii' lo r/irr a i/uod 
account (ftheinxdves, it shatt l>c Irft to tlie, disrrdioii aii(tjinl;/mi)it of snrli nuuiistratc or 
magislratas he/ore v)/uim such person or persons as aforesaid sJadt be. liroiiylU to jii(lj>;e 
thereof, and if, before such magistrate, such person or jK^rsons so taken up shall bo 
deemed and taken as a runaway, he, she or they shall suffer such fines and penaltiod 
as are hereby provided against runaways." Setionl, — "And for the better eiu-ou- 
rasement of all persons to seize and take up all runaways, Ac, all and <!very such 
person or persons as aforesaid, seizing or taking up such runaways, traveltimj without 
2iasses as aforrsnid, not being able to give a sulllcient account of themselves as afore- 
said, shall have and receive two ImiKlrrd /n'liiids of tobacco," (by act of 1800, chap. 81, 
g 5, commuted for Bix dollars,) " lu Ic paid by the owner of such runaway servant, 
negro or slave so ajiprehcnded and taken uji ; and if such suspected runaway or run- 
aways be not servants, and hki'iihi; to i'ay tub same, he, she or they shalt maku satis- 
FAC I ION BY SERVITUDE ou OTHERWISE, as the justiccs of tho provincial and county courts 
where such person shall be so apprehended and taken up, shall think fit." Section 
9 — '-That at what time soever any of the said persons — runaways— shall be seized 
by any person or persona within this province, such person or persona so appnshend- 
ing or seizing the sanuj, shall bring or cause him, her or them to bo broiiglit before 
the next m.iglslrate or justice; of the county where such runaway is ujipri'lionded, 



FREE MADE SLAVES. 57 

cup. 44, II 6, 7, i ^-aciof 1719 (*. --»",) c/^i-. 2, 5 2-«o< o/ 
1802, {November session,) chap. JO, ^ ^. 

, * +nv» \nin custody or otherwise, him, her or them, to 
who is herehy empowered t^Jf^^V^*^, until ^^ person or persons so seized and 
secure and dispose of as he ^^^all think tit,um ^ ^ ^ the premises the next 

apprehended shall give go«4„«°^Viwcou^?y,whfeh court shall secure such person 
c^urt that shall first ensue in ^^''^f ^^^.P^ion to the party that shall so apprehend 
Z persons till he or they ^^n make sati=,faction to i P ^^^^^^ gpt such person 
or seize such runaways or oi/i.r prsons as ^^^^^ ^^^^ ^^^^ notice 

^hall make satisfaction as afo;^^;^^;^ ^f ^ StressVdame or overseer of runaways 
may he conveniently given to t^^^^^^^Jf '.?ufco^^ shall forthwith cause a note 

Sken up as aforesaid, the ''^'^}^'\'''^^,^''^l^^^^ to be set up at the 

of the runaway's name, ^° ^eued and apprehe^^^ secretary's office, that all 

l^Lfr^'^'^^i^e^^^^^^^^ -^ ^^^^^ -"^^^^ ^'"'^' ^^ "'"^ 

=the £:egoing sections apply e^^ally to the -e-^,,f JJ^^^^^^^^^^^^^ 
tZac^-! who maybe found V-'^^"' 1"^/^?^" rf of a magistrate? may he subjected to 
residences are;' and all snd, at ^Uh t t sect'o'of the same act, while it 'bears 
imprisonment and amercemeiit. .J^^^^;^^!'^;^^,^ spirit of a free government upon 

. runaways, and by any justice of t^^^P^^'l^ ^f ^fiil for any such sheriff or jailer to 
oJailer within this province ^^ JaU not b.^^^^^^ J^^^^^ ^ ^ y 

hold such person in custody lonjcr ^/'«'^jf ^^'"1"'^ other justification that he or 
Se ^itHin the said six months procure a ce^^jfijute or oth^^^ J justices of the county 
Khe is no servant, he or she sha 1 and may, "J j^F'^, ^ ^ f^oni any further imprison- 
'J:'here°uch person is committe,! t^a prgn 6e d J^ ^^ J^ ^^^^ ; , 

iTient he or she serving such shenW or jaiir or ' ^ ^ naying ten pozinds of tobacco 
" V ; A in custody ofsuchfterilforjarl^^^^^^^ no more ; and paying 

per day to such ^^^^^^riff or jailer for ^n^^^^r^^^^ ^^^^ hundred pound^ of tobacco 

unto such person or Persons who took up sucnp ^^^^ .^ ^^^ ^^^^ ^1^^^,^ or 

^r serving hint, her or them '^'^"<f^^£?/Xr such order of the justices foresaid, or 
iailer shall detain such person in P'^i^o^^^.^^Lp'^' ^unds of tobacco per day as afore- 
the expiration of six months and PJlJ^^^'^.^^f^^^eliCof folse imprisonment." Iniqui- 
said! such sheriff or jailer shall be liab e to a^ ^f °^^ legislature could not be reached 
tons as this law is, it is obvious t^at tl e objw^t ot we^ g neglecting to give 

iv it. It offered, indeed, a bounty t^t^^/'^^'nawlv, might protract such imprison- 
notice of the imprisonment of a ^"«i''^^'„^';,Xt''?^'a?;oiute slave for life, would not 

Sient tm the value of his f -/";^f '^^S .o^eT^^^^^^^^^^^ *''' ''''''l -^i 

be equal to the jail fees. And yet, without ^^^ynaway, or if a runaway should 
self would, in case the person detained was JJ"^ ^/^^^^^^^/^f such expense as might 
not be demanded by his master, be made osuff^^^^^^^^ ^ ^.^ imprisonment 

Ee incurred for the sustenance of the JJ^^J^ tf^^^^ produced the ahandonment of 

SleriS^«- - -"— ^--^^^^^ ..vants or Slaves, and al. 



58 EDUCATION WITIinELD. 

III. The benefits op education are withheld from the slave. 
In no country is education more highly valued, or its benefits moro 



such other charges as have accrued or become due to any person for taking up such 
runa'Hray servants or slaves, such sheriff is hereby authorized and required (sUch 
time limited as aforesaid being expired) immediately to give public notice to all pcr- 
soiis, by setting up notes at the church and court-house doors of the county where 
such servant or slave is in custody, of the time and place for sale of such servants 
or slaves, by him to be appointed, not less than ten days after such time limited as 
aforesaid being expired, and at such time and place by him appointed as aforesaid. 
to proceed to sell and dispose of such servant or slave to ihe hi<jliest bidder, and out of 
the money or tobacco which such servant or slave is sold for to pay himself till such 
IMPRISONMENT FEES as are his just due for the time he has kept such servant or slave 
in his custody, and also to pay such other charges, fees or reward as has become due 
to any person for taking up such runaway servant or slave ; and after such pjiy- 
ments made, if any residtie shall remain of the money or tobacco, such servant or 
slave was sold for, such sheriff shall only be accountable to the master or owner of 
such servant or slave for such residue or remainder as aforesaid, and not otherwise." 
Laws of Maryland, act o/"1719, {3lay session,) chap. 2. 

Upon the enactment of this law, the most unprincipled sheriff should have been 
content. It became, indeed, not only his interest, but the interest of all other per- 
scms, to apprehend and to commit to prison coloured persons especially ; for these 
might be detained for a longer period than six months, whether free or not. The 
right of the takcr-up to his legal reward and other charges, was secured to him Viy 
a LIEN ON TQE BODY OF THE PRISONER, and the sheriff or jailer was indemnified in the 
same manner against the loss of his imj^risonment fees. And by prolonging the im- 
prisonment until the fees should be swelled to nearly the value of the jirisoner, if • 
a slave, the master, in many instances, might be unable or unwilling to redeem him, 
and the sheriff's sale, which in such case is authorized, could easily be turned to the 
account of some favourite of that officer, and eventually, by collusion, to his own 
pecuniary advantage. And should the suspected runaway not be a slave, yet in a 
land where, from his colour, he is jwesumed to be so, and where others lile 1dm are 
daily " made merchandise of," the facility with which his imprisonment, aided by the 
provisions of this act, might be rendered profitable to the sheriff, would be greatly 
increased. But, whatever may have been the true cause, the prevalence of a practice 
on the part of sheriffs, of prolonging the im-prisonment of persons apprehended as run- 
aivays, is evidenced by an net of Assembly, passed the ttoenty-second day of December, 
1792, entitled " jin Act to restrain tlie ill-practices of sheriffs, and to direct their con- 
duct respecting runaways." The act sets forth that "Whereas it is represented to 
this General Assembly, that the sheriffs of the respective counties have neglected to 
advertise runaways, to the great in jury of the owners; therefore, &c. That it be the 
duty of the several sheriffs, &c., upon any runaway being committed to their cus- 
tody, to cause the same to be advertised in some public newspaper within twenty 
days after such commitment, and to make particuhir and mimtte description of the 
person, clothes, and boddy marks of such runaway." " And if no person shall apply 
for such runaway within the space of thirty days from such commitment, then it 
shall be the duty of such sheriff, if residing on the Western Shore, to cause the run- 
awa}' to be advertised, as heretofore directed, in the Maryland Journal and George- 
town Weekly Ledger; and, if residing on the Eastern Shore, to cause the same to be 
advertised in the Maryland Herald and Maryland Journal, within sixty days from 
such commitment, and to continue the same therein until the said runaway is 
released by due course of law." Maryland Laws of 1792, {November session.) chap. 
72. 

In that part of the District of Columbia which was ceded by the state of Jlaryland 
to the federal government, the whole of these laws are still in force. Shortly aft€r 
the date oitJie cession, however, the legislature of Maryland repealed the act oflTlQ, 
ch. 2. and the act o/1792, ch. T2, supplying their place by the following regulations, 
which, as it will be perceived, are in principle the same as the repealed acts :— "That 
it shall be the duty of the sheriffs (respectively) of the several counties of this state, 
Ac, upon any runaway servant or slave being committed to his custody, to cause 
the same to be advertised in some pulilic newspaper or papers printed in the city of 
Baltimore, the city of Washington, and the town of Easton, and in such other public 
manner as he shall think proper, within fifteen days after such commitment, and to 
nT.ik<i particular and miiiute description of the clothing, person, and bodily marks of 
Buch runaway." '-If the owner or owners, or some per.son in his, her or their 
behalf, shall not apply fur said runaway within the .space of s-ixty days frota the 



EDUCATION WITHHELD. 



59 



generally diffused, than in the United States. The Cons itutions of 
nearly all the states make it the duty of the respective legislatures 
to est:^iblish and support seminaries for learning aj^equate to the w.n s 
of the citizens. Common schools are also provided ''for the educa- 
tion of the poor gratis." In several, perhaps in all, of the free states, 
no distinction is' made, in the distribution of the public ^oun y t - 
wards this object, between white and coloured cjuWren ; but sd o s 
are constantly maintained for the reception and instruction of pom 
children of every class and complexion. i i/i-^„ e+o^pc Tn 

A different policy began very early in the « ave-holding states \n 
none of these do the laws interpose to afford any aid or facility tor 
he acquisition of learning to persons of colour, whether slaves or 



\ 



and directed, to proceed to fl^-fj^-^^^^ ct7r :hote7o"?tt sfxcl'o'th. r public 
(passed 8th J=^°";'^y>;' ^^^J.^^^^^- .. ^he law of 1715. above transcribed, it ^vill be seen 

to the laws now in ^rce and the notjccjeqo ed ^ J^ ^^ 

shall have been pven. and the Y™f .^jT^Vrl ^u^neHxMi runawav. and proved his, 
persons shall have applied for and clauned said -usp^^^ bylaw.it shall be 

h.r or their title to such ^^^P^^^e^ J"^^^^,^^-,^^,,^ befoTe ?ome iud^e of the County 
thesheriff/orthwithtocarrysuh to or .^^^^^^ ^^^ ^^^^^ . .^ 

Court or judge of the 9^P^^°%„^°":'L!: 1, „^^^ a.- he may deem most a-Zri.s- 

hereby required to examine and inquire %.s«;« ^^^^,^ ^^^.^ ,.^.,. 

able, whether such suspected ^.""f^y'^JJJ.'Jt';^^^^^ a slave, he mav remnnd 

sonable ground.s to l^^^^^^ that such s^uspectedrunawa^^^ ^^^^^ ^^ additional time 
such suspected runaway to prison, to be conunea lor ^^^^ ^^^^^^ 

as he may judge right aM,^^^^^^^^^^^ 

susixH^ted r^^^away f the slave o ^^^1,^^ owner, as he may think most advisable ; 
to be given by the sherilt to sutu ^^^^>'^:~,^.„„,j L 7,^7,v,,^ oucJ, suspected runaxmu to 

siono/ 1817,) c/iap. 112, 2 6. 



60 EDUCATION WITIIIIELI). 

freemen. On the contrary, the extracts which I shall make from the 
laws of these latter states will satisfactorily demonstrate the truth of 
the proposition at the head of this section, — namely, that the benefits 
of education are withheld from the slave, and, I might add, from the 
free negro also. 

Legislation on this subject began in South Carolina at a compa- 
ratively early date. By act of 1740 it was enacted as follows: — 
"Whereas the having of slaves taught to write, or suffering them to 
be employed in writing, may be attended with great inconveniences, 
Be it enacted^ That all and every person and persons whatsoever who 
shall hereafter teach or cause any slave or slaves to be taught to 
write, or shall use or employ any slave as a scribe in any manner of 
writing hereafter taught to write, every such person or persons shall 
for every such offence forfeit the sum of one hundred pounds current 
money." 2 Brevard's Digest, 243. 

This was followed, in 1800, (leaving the act of 1740 also in force,) 
by this enactment: — "Assemblies of slaves, free negroes, mulattoes 
and mestizoes, whether composed of all or any of such description of 
persons, or of all or any of the same and of a proportion of white 
persons, met together for the purpose of mental instruction in a con- 
fined or secret place, &c. &c., are declared to be an unlawful meeting ; 
and magistrates are hereby required, &c., to enter into such confined 
places, &c. &c., to break doors, &c. if resisted, and to disperse such 
slaves, free negroes, &c. &c. ; and the officer dispersing such unlawful 
assemblage may inflict such corporal puriishmcnt, not exceeding twenty 
lashes upon such slaves, free negroes, <^-c., as they may judge necessary 

for DETERRING THEM FROM THE LIKE UNLAWFUL ASSEMBLAGE IN FU- 
TURE." 7 Statutes of South Carolina, 440. And another section of the 
same act declares "That it shall not be lawful for any number of 
slaves, free negroes, mulattoes or mestizoes, even in company with 
white persons, to meet together for the purpose of mental instruction, 
either before the rising of the sun, or after the going down of the 
same." Ibid. 

She has since added a larger and more direct prohibition, hy act of 
December 17, 1834 : — " If any person shall hereafter teach any slave 
to read or write, or shall aid in assisting any slave to read or write, or 
cause or procure any slave to be taught to read or lorite, such person, 
if a free white person, upon conviction thereof, shall for every such 
offence against this act be fined not exceeding one hundred dollars, 
and imprisoned not more than six months ; or if a free person of color, 
shall be whipped not exceeding fifty lashes, and fined not exceeding 
fifty dollars ; and if a slave, shall be whipped not exceeding fifty 
lashes ; and if any free person of color or a slave shall keep any such 
school or other place of instruction for teaching any slave or free per- 
son of color to read or ivrite, such person shall be liable to the same 
fine, imprisonment and corporal punishment as are by this act im- 
posed and inflicted on free persons of color and slaves for teaching slaves 
to read or write," 7 Statutes of South Carolitia, 468. 

In Virginia, according to the Code of 1849, "Every assemblage of 
negroes for the purpose of instruction in reading or writing shall be 
an unlawful assemhhj. Any justice may issue his warrant to any of- 



EDUCATION WITHHELD. ^)1 

ficer or other person, requiring him to enter any place where such 
assemblage may be, and seize any negro therein ; and he or any other 
justice may order such negro to be punished with stripes. 

"If a wA77e person assemble with negroes for the purpose o.f in- 
structing them to read or tvrite, he shall be confined to jail not exceed- 
ing six months, and fined not exceeding one hundred dollars." Code 
of Virginia, 747-48. 

Three statutes have been made in Georgia on this subject, all of 
which appear to be still in force. The first was in 1770, and is very 
similar to the act of South Carolina of 1740. differing chiefly in includ- 
ing in its prohibition instruction in reading as well as writing, and 
fixing the penalty at twenty pounds sterling. 2 Cobb's Digest, 981, 

In 1829 it was enacted, "If any slave, negro or free person of color, 
or any tchite person, shall teach any other slave, negro or free person 
of colour to read or tvrite either written or printed characters, the said 
free person of colour or slave shall be punished hy fine and ichipping, 
ov fine or ichipping, at the discretion of the court ; and if a white person 
so ofi"ending, he, she or they shall be punished with/ne not exceeding 
five hundred dollars, and imprisonment in the common jail at the dis- 
cretion of the court " lb. 1001. 

In 1833 this further legislation occurred: — "If any person shall 
teach any slave, negro or free person of colour to read or tcrite either 
written or printed characters, or shall procure, suffer or permit a 
slave, negro or person of colour to transact business for him vi tvriting, 
such person so offending shall be guilty of a misdemeanour, and, on 
conviction, shall be punished by fine, or imprisonment in the com- 
mon jail, or both, at the discretion of the court." lb. 828. 

In North Carolina, "Any free person who shall hereafter teach, or 
attempt to teach, any slave within this state to read or ivrite, the use 
of figures excepted, or shall give or sell to such slave or slaves any 
hooks or pamphlets, shall be liable to indictment, &c. ; and upon con- 
viction shall, at the discretion of the court, if a loltite man or woman, 
be fined not less than 07ie hundred dollars, nor more than tico hundred 
dollars, or imprisoned ; and if a free person of colour, shall be fined, 
imprisoned or whipped, at the discretion of the court, not exceeding 
thirty-nine lashes, nor less ihvin tiventy lashes." Revised Statutes, ch. 
34, ^ 74, p. 209. And for a similar offence as to instruction, a slave 
shall receive thirty-niiie lashes on his or her bareback." lb. ch. 3, ^ 27. 

By act of Assembly, of Louisiana, passed in March, 1830, "All 
persons who shall teach or cause to be taught any slave in this state 
to read or ivrite shall, on conviction thereof, &;c., be imprisoned not 
less than one nor more than ticelve months." 

And in Alabama, " Any person who shall attempt to teach nnjfree 
person of colour or slave to spell, read or tvrite, shall upon conviction, 
&c., be fined in a sum not less than $250 nor more than $500." 
Clay's Digest, 543, act o/1832, g. 10. 

So far as I have at present the means of ascertaining, the laws of 
Kentucky, Tennessee, Mississippi, 3Iissouri, Arkansas, Florida and Texas 
are silent on this subject. And in regard to the states in which pro- 
hibition has been thought expedient, there are differences which are 
yery remarkable. Thus, ii> Virginia the oivncrs of slaves arc left at 

6 



62 EDUCATION WITHHELD. 

liberty to instruct them as carefully and extensively as they please. 
The prohibition has respect to the efforts of third persons. 

South Carolina began with repressing instruction in ivriting only. 
The next step was aimed against mental instruction of every kind, con- 
ferred, or attempted to be conferred, at an assemblage of slaves, free 
coloured persons and whites. The owners, notwithstanding either of 
these laws, might, at their respective homes, have taught their slaves 
to read, without fear of molestation or complaint. And it has been 
stated on high authority tha^, in this way, not a few had acquired the 
capacity to read so as to take part in religious worship in Episcopal 
churches at Charleston. The last act, whilst it is to be inferred from 
it that slaves had been so instructed, (for it supposes that such were 
then among them, capable of keeping school,) has placed under the ban 
all efforts to instruct the colored race, — bond and free, — whether in 
reading oy writing. 

North Carolina will allow slaves to be made acquainted with arith- 
metical calculations, whilst she sternly interdicts reading m\([ writing 
to a slave. She makes it highly penal, also, to give or sell any book or 
pamphlet to a slave. 

Alabama wars with the rudiments of reading. She forbids any 
coloured persons, bond or free, to be taught to spell, as well as to 
read or ivrite. 

Grorgia carries her prohibitions beyond imparting instruction to 
coloured persons; for she subjects any one to .///le and imprisonment 
" who shall procure, suffer or permit a slave, negro or person of 
colour to transact business for him in writing." 

Again, the punishments are various. Some impose pecuniary fines 
only ; others add imprisonment., whilst in one state nothing but imprison- 
ment will satisfy. Whipping, as well as fi7ie and imprisonment, is meted 
out unsparingly to the/ree coloured offender ; and the unhappy slave 
is not to be whipped only, but must receive thirty-nine lashes on his or 

HER BARE BACK. 

Such differences, in statutable enactments on the same subject, sug- 
gested several observations. One of the most obvious is, that a being 
whose desire for mental improvement is so strong as to require such 
powerful means of repression must have been intended for a higher 
destiny than " to live without knowledge and without the capacity to 
make anything his own, and to toil that another may reap the fruits," 
and also that there is great reason to believe his subjection to the 
uncontrolled authority of another, which is alleged to be inherent and 
inseparable from slavery, must be both a mistake and an injustice. 

Before quitting this subject, it is proper to say that where there is 
no legislation on the part of a state to debar the slave from mental 
instruction, the power may exist, and I presume generally does exist, 
in incorporated cities, to effect the same end by local ordinances. In 
Savannah, in 1818, an ordinance of this description, going beyond the 
then law of the state, was adopted, and may be yet in force. The 
Port Folio for April, 1818, thus notices it: — "The city has passed an 
ordinance by which any person that teaches any person of colour, slave 
or free, to read or write, is subject to a fine of thirty dollars for each 
oftence ; and every person of colour who shall keep a school to teach 



RESTRAINTS OX RELIGIOUS INSTRUCTIONS. 63 

readiiig or icriting is subject to a fine of thirly dollars or to be imprisoned 
ten days and whipped thirty-nine lashes"! ! p. 325. 
with such legislative obstacles to his mental improvement, it ought 
to excite no surprise if a slave having the ability to read or write 
could not be found within a slave-holding state. But, apart from 
these obstacles of law, the condition of slavery is such that a slave 
capable of reading must be, in most of the states, a prodigy indeed. 
His life is ordinarily passed in incessant toil. The laws, as I have 
already shown, secure to him no portion of time in which he may 
employ himself at his pleasure. He is awaked from his slumbers, at 
the call of his master, often before the dawn of day ; he continues his 
heartless labour, with but slight intermissions for rest and food, till 
night has closed around him. Hard worked, and scantily fed, his 
bodily energies are exhausted ; without an instructor and without 
books, (for he has not the means to procure them,) he must of neces- 
sity remain forever ignorant of the benefits of education. 

IV. — The means for moral and religious instruction are not 

GRANTED TO THE SLAVE ; ON THE CONTRARY, THE EFFORTS OF THE 
HUMANE AND CHARITABLE TO SUPPLY THESE WANTS ARE DISCOUNTE- 
NANCED BY LAW. 

One of the plain dictates of the Christian religion is a regard for the 
well-being of our fellow-creatures. It is, indeed, largely insisted 
upon as a duty, both in the Old and New Testament. No believer in 
the Christian religion can doubt that the knowledge of its precepts 
and promises may promote the happiness both here and hereafter of 
every accountable creature ; nor will such a one deny that a negro, 
though a slave is a member of the human family, — is endowed with 
reason, — has a soul which is immortal, and must be deemed account- 
able unto GOD "for the deeds done in the body." How can such a 
belief be reconciled with a practice which forbids to the slave access 
to the gospel? — which as far as the master'' spoioer so to do extends, shuts 
out from him the knowledge of the means of his salvation? 

It has been shown, in the last chapter, that one of the means to 
which allusion is here made — namely, mental instruction — is in general 
entirely withheld from the slave. He cannot be expected, therefore, to 
learn the Scriptures, except as an auditor. And yet in none of the 
slave-holding states are any facilities afforded by the laws for this 
purpose. No time is secured to the slave, nor any place provided 
where he can assemble with his fellows to hear " the glad tidings of 
salvation" preached. 

It is idle to talk of accompanying his master to church. Such a 
spectacle, I apprehend, is rarely exhibited, except for the special con- 
venience of the master. The paucity of places of worship, in the slave- 
holding states, compared with the number of white inhabitants, 
prevents the exercise of this privilege to an extent at all commensu- 
rate with the religious wants of the slave. 

Besides, if no other impediment existed, the rude mind of the slave 
could not comprehend a discourse designed for the refined^ taste and 
enlarged capacity of the master. Christianity demands that these 
unfortunate beings should be taught to read ; that buildings should 



64 RESTRAINTS ON RELIGIOUS INSTRUCTIONS. 

be erected for their assembling together to worship their Creator; 
that teachers* who are willing and qualified to administer to their 
spiritual necessities should be encouraged to dedicate their time and 
talents to the pious service ; that rest should be allowed to the slave 
at the seasons usually allotted among Christians for religious worship, 
and especially that laws should be made and enforced to prevent the 
exaction of labour from the slave to such a degree that his senses are 
overpowered by sleep the moment his body ceases to be active, f 

If i\xQ practice of the slave-holding states is in accordance with the 
laios, the reverse of this picture will, it is believed, be found true in 
most respects. In a law enacted by the state of Georgia, December 
13th, 1792, with the title, " To protect religious societies in the exer- 
cise of their religious duties," it is required of every justice of the 
peace, &c., and every civil officer of a county being present, &c. &c , 
to take into custody any person who shall interrupt or disturb a con- 
gregation of ivldte persons assembled at any church, &c., and to impose 
a fine on the offender ; and in default of payment he may be imprisoned, 
&c. &c. ; yet the same laio concludes in these words: — "No congre- 
gation or company of negroes shall, under pretence of ' divine icorship, 
assemble themselves contrary to the act regulating patrols." Prince's 
Dig. 342. In 2 Cobb's Dig. 851, the concluding words, '■^contrary to 
the act regulating patrols,^' are omitted; but at page 982 of the same 
volume they stand as a part of the law still in force, and the seventh 
section of the act regulating patrols is also given as an existing law. 
Ibid. 973. I have not been able to discover the law here referred to 
as the act regulating patrols ; but the editor of the Digest, whom I pre- 
sume to be fully competent to resolve the difl&culty, quotes the seventh 
section of act passed May 10th, 1770, "for ordering and governing 
slaves, &c.," as that intended to be designated by the legislature. 
This section begins with a recital, "Whereas the frequent meeting, 
&c., of slaves under i\\Q pretence of feasting may be attended with dan- 
gerous consequences," and proceeds to enact " That it shall be lawful 
for every justice of the peace, &c., upon his own knowledge or infor- 
mation received, either to go in person, or by warrant, &c., directed 
to any constable, &c., to command to their assistance any number of 
persons (ivhich) they shall see convenient, to disperse any assembly or 
meeting of slaves which may disturb the peace or endanger the safety 
of his majesty's subjects; and every slave which shall be found and 
taken at such meeting as aforesaid shall and may, by order of such 

* In North Carolina, no slave or free coloured person is allowed to preach. Revised 
Stututes, p. 580, g 34. 

f Mr, Jefferson, in his "Notes on Virginia," speaking of slaves, makes the follow- 
ing remarks: — "In general, their existence appears to participate more of sensation 
than reflection. To this must be ascribed their disposition to sleep when abstracted 
from their diversions and unemployed in labour. An animal whose body is at rest, 
and who does not reflect, must be disposed to sleep, of course.-' See Answer to Query 
l-l. I do not dissent from this doctrine. It is philosophically true. But, with the 
accurate knowledge which Mr. Jefferson, possessed as to the actual condition of the 
slave, it seems strange that he should ha\ e omitted to include, as a reason why tho 
slave, when " abstracted from his diversions and unemployed in labour," should be 
disposed to sleep, tlie fatigue induced by the severity of his labour. The disposition 
to sleep which is thus indicated as characteristic of the Hack is equally observable, 
as far as I am able to ascertain, among the ki'jouring clais of whites. 



KESTRAIXTS ON RELIGIOUS WORSHIP. 65 

justice, immediately be corrected "without trial, by receiving on the 
bare back twmiy-five stripes loith a whip, sivitch, or cowskin,''^^ &c. Prince'' s 
Dig. 447; 2 Cobb, 973. The terms of this prohibition in relation to 
the meeting of slaves for divine worship are, it must be admitted, not 
a little enigmatical ; yet, with the aid of the twenty-five lashes of the 
cowskin, the most stupid negro will be rendered apt enough to com- 
prehend their meaning. 

In South Carolina, by a section already in part extracted, a pro- 
hibition, though not absolute in its terms, yet in effect, I suspect, it 
must have been nearly so, was made in 1800. The section reads 
thus : — " It shall not be lawful for any number of slaves, free negroes, 
mulattoes or mestizoes, even in company with white persons, to meet 
together and assemble for the purpose of mental instruction or reli- 
gious loorship, either before the rising of the sun or after the going 
down of the same. And all magistrates, sheriflFs, militia officers, &c. 
&c., are hereby vested with power, &c., for dispersing such assem- 
blies," &c. 2 Brevard's Dig. 254-5. Three years afterwards, upon 
the petition, as the act recites, of certain religious societies, the 
rigour of the act of 1800 was slightly abated by a modification, which 
forbids any person, before nine o'clock in the evening, "to break 
into a jjlace of meeting wherein shall be assembled the members of 
any religious society of this state, jjrovided a majority of them shall be 
white persons, or otherwise to disturb their devotion, unless such per- 
son, &c., so entering the said place (of worship) shall have first 
obtained from some magistrate appointed to keep the peace, &c., a 
warrant, &c., in case a magistrate shall be then actually within the 
distance of three miles from such place of meeting; otherwise tlie 
provisions, &c., (of the act of 1800, above cited,) to remain in full 
force." 2 Brevard's Dig. 261. If this latter act yields to the slave a 
privilege in assembling for divine worship beyond what he possessed 
before, it must consist, it appears to me, chiefly in preventing inter- 
ruptions by persons who, acting from a sense of oj/icial obligation, 
might deem themselves compelled, by the provisions of the former act, 
to hunt out and disperse the congregations of negro worshippers 
wherever they might be found. For it must happen, I apprehend, 
very frequently, that the quorum of white persons cannot with much 
certainty be depended upon. And, in such case, the poor slave, dis- 
appointed in his expectations of the quorum, will be at once subjected 
to the terrible penalty of the twenty-five lashes of the cowskin on his 
bare back, well laid on. 

In Virginia, until the late revision, the law was: — "All meetings, 
&c., of slaves, free negroes and mulattoes mixing, &c., with such 
slaves at any meeting-house, &c., or any other place, &g., in the night. 



* And while in Georgia slaves are thus discouraged from assembling together for 
the purpose of divine worship, the same state, in a f^pirit which I by no means con- 
demn, has adopted the following as a standing rule for the government of the jirni- 
tentiary : — " It shall be the duty of the keeper, A'C. to furnish them {i. e. tlie convicts) 
with such moral and religious books as shall bo recommended by the insjiector.-f; to 
procure the performance of divine service on Sundays, as often as may bo." Sen Rule 
\Wi for the internal government of the penitentiary of Georgia ; Prince's Digest. 
386-7. 

6* 



66 BAPTISM XOT TO FREE SLAVES. 

under any pretext whatsoever, are declared to be unlairful assemhlie?; 
and the civil power may disperse the same, and inflict corporal pun- 
ishment on the offenders." This forbids meetings of slaves in the 
night. The following change has been recently made:— " Every 
assemblage of negroes /or the purpose of religious worship, when such 
worship is conducted by a negro, shall be an imlawful assembly ; and 
a justice may issue his warrant to any officer or other, person, requir- 
ing him to enter any place where such assemblage may be, and seize 
any negro therein, and he or any other justice may order such negro 
to be punished with stripes." Code of Virginia, (of 1849,) p. 747. 

The prohibition in this statute is directed against meetings of 
negroes for religious worship, ^vhen conducted by a negro; and this is 
forbidden absolutely at any time, day or night. And if any provision 
were made by the government to secure to the coloured race the 
benefit of divine worship, properly conducted by white clergymen, 
the prohibition of the statute would be of little or no consequence ; 
but no such provision exists. 

Mississippi has adopted the former law of Virginia, with a proviso 
that the master or overseer of a slave may, in writing, grant him 
permission to attend a place of religious worship at which the minis- 
ter may be white and regularly ordained or licensed, or, at least, two 
discreet and reputable white persons, appointed by some regular 
churchy or religious society, shall attend. Mississippi Rev. Code, 390. 

An opinion seems, at one period, to have obtained in many of the 
states, that by consenting to the baptism of his slave the master vir- 
tually enfranchised him. To remove the pretext which was thus 
furnished for withholding the administration of a rite so commonly 
practised among Christians, the following brief section was enacted 
in Maryland: — "Forasmuch as many people have neglected to bap- 
tise their negroes or suffer them to be baptized, on a vain apprehension 
that negroes, by receiving the sacrament of baptism, are manumitted 
and set free. Be it enacted, cfc, That no negro or negroes, by receiving 
the holy sacrament of baptism, is thereby manumitted or set free, nor 
hath any right or title to freedom or manumission, more than he or 
they had before, any law, usage or custom to the contrary notwith- 
standing." Act of 1715, ch. 44, ^ 23. So, in the year 1711, the legis- 
lature of South Carolina deemed a smilar act necessary. *' Since," 
according to the language of the preamble, "charity, and the Chris- 
•vtian religion which we profess, oblige us to wish well to the souls of 
all men, and that religion may not be made a pretence to alter any 
man's property and right, and that no person may neglect to bap- 
tize their negroes or slaves or suffer them to be baptized, for fear 
that thereby they should be manumitted and set free, J3e it, ^'c, e?i~ 
acted, That it shall be and is hereby declared lawful for any negro, 
or Indian slave, or any other slave or slaves whatsoever, to receive 
and profess the Christian religion, and thereunto baptized." 2 Bre- 
vard's Big. 229. The section then provides that such profession of 
religion and submission to baptism shall not be construed to effect 
an emancipation of any slave, &c.* 

* The doubts which gave rise to these laws of Marj'land and South Carolina, pro- 



SUBJECTION TO ALL WHITES. 67 

I know of no exception to the general bearing of the foregoing laws 
and observations, unless the following concise enactment of the legis- 
lature of Louisiana may be thought to form one: — "It shall be the 
duty of every owner to procure to his sick slaves all kinds of temporal 
and spiritual assistance which their situation may require." 1 Alar- 
ail's Dig. GIO. Giving to this provision the most favourable interpre- 
tation, it is but a kind of death-bed charity. 

V. — Submission is required of the slave not to the will of 

Ills MASTER ONLY, BUT TO THE WILL OF ALL OTHER WHITE PERSONS. ■^■■ 

While the institution of slavery exists, every thing like resistance 
to tlie master's lawful authority should be decisively checked. Strict 
subordination must be exacted from the slave, or bloodshed and mur- 



bably originated in two judicial investigations which had occurred in England a 
phort time previously. The first of these is reported in 3 Mochrn ReporU, 120-1, 
(a. D. 1C86-7,) and is there thus stated: — "Sir Thomas Grantham houaht a monster 
in the Indies, which was a man of that country who had the perfect shape of a child 
growing out of his breast, as an excre.-^cency, all but the head. This man he brought 
hither, (?'. e. to England,) and exposed to the sight of the people for profit. The 
Indian turns Christian, and was baptized, and was detained from his master, who 
brought a homine replegiando, (i. e. a writ by which his title to retain the man as 
property might be legally tested.) The sheriff returned that he had replevied the 
body, &c. And then the Court of Common J'leas bailed him." How the case was ulti- 
mately disposed of does not appear; but the proceeding even thus far was calculated 
to excite a fear lest the profession of Christianity and tlie administration of baptism 
might be decided to entitle the slave to the privileges of a freeman. 

In 1696, the question whether the baptism of a m;gro slave, without? the prfvitt or 
CONSENT OF HIS MASTER, emancipated the slave, underwent an elaborate discussion 
before the judges of the King's Bench. Owing to a misconception of the form of the 
action, a final decision was not given, and the plaintiff being, of cotirse, unsucces.-ful 
on that occasion, the doubts which had resulted from the former case were strength- 
ened rather than impaired. 

The arguments of the counsel for the defendant are sufRcien'tly curious to de 
serve transcription : — " Being baptized according to the use of the church, he (the 
slave) is thereby made a Christian, and Christianity is inconsistent with slavery. 
And this was allowed even in the time when the Popish religion was estaVilished, as 
appears by Littleton ; for in those days, if a villain had entered into religion, and 
was professed, as they called it, the lord could not seize him; and the reason there 
^iven is, because he was dead in law, and if the lord might take him out of his 
cloister, then he could not live according to his religion. The like reason may now 
be given for baptism being incorporated into the laws of the land; if the duties 
which arise thereby cannot be performed in a state of servitude, the baptism must 
be a manumission. That such duties cannot be performed is plain; for the persons 
baptized are to be confirmed by the diocesan, when they can give an account of their 
faith, and are enjoined, by several acts of Parliament to come to church. But if the 
lord hath still an absolute property over him, then he might send liim far enough 
from the performance of those duties, viz. : into Turkey, or any other country of infi- 
dels, where they neither can or will be suffered to exercise the Cliristian religion." 
In conclusion, the counsel remarks, "It is observed among the 2\trhs that tliey do 
not make slaves of those of their own religion, though taken in war; and if a Chris- 
tian be so lalen, yet if he renounce Christianity and turn Mahometan, he doth thrrdnj 
obtain his freedom. And if this be a custom allowed among infidels, then baiitisni, 
in a Christian nation, as this is, should be an immediate enfranchisement to them, 
as they should thereby acquire the privileges and immunities enjoyed by those of 
the same religion, and be entitled to the laws of England." See 5 Modern Reports, 
lUO-1; ChamberUne vs. Harvey. 

* On page 33 an extract from the opinion of the Supreme Court of North Carolina 
was given, in which the imjdicit ot)edience of a slave to his master or any other having 
the control of him by his master's eoyisent, was asserted in the most unqualified terms. 
This is a principle of slave law generally recognised in the slave-holding states. See 
Commonwealth vs. Turner; 5 Randolph's lUp. 678; and see also the cases given in 
note to this sketch, post, p. 296, et seq. 



(38 SUBJECTION TO ALL WHITES. 

ders will unavoidably ensue. The laws of the slave-holding states 
demand, however, a much larger concession of power to the master 
than is here granted: they demand that the life of the slave shall be 
in the master's keeping ; that the slave, having the physical ability 
to avoid the infliction of a barbarous and vindictive punishment by 
his master, shall not be permitted to do so. They go, indeed, even 
beyond this: they place the slave under the like restriction in relation 
to every luhite person, without discrimination as to character, and with 
but little consideration as to motives. Thus it is enacted in Georgia : 
— " If any slave shall presume to s-trike any white person, such slave, 
upon trial and conviction before the justice or justices, according to 
the directions of this act, shall for the^rs^ offence suffer such punish- 
ment as the said justice or justices shall in his or their discretion 
think fit, not extending to life or limb ; and for the secojid offence 
suffer DEATH." Prince's Dig. 450 ; 2 Cobb's Dig. 97G. The law of 
South Carolina (2 Brevard's Dig. 235) is in the same words, except 
that death is not made the punishment of the second, but of the third, 
offence. In both of these states a proviso is annexed to this law, 
wbich shows plainly that, however wanton or dangerous may be the 
attack upon ihQ slave, he is still compelled to submit; — "Provided 
always that such striking, &c. be not done by the command and in the 
defence of the person or property of the owner, or other person having 
the care and government of such slave, in which case the slave shall be 
wholly excused, and the owner or other person, &c. shall be answer- 
able as if the act had been committed by himself." 

In Maryland, act of 1723, chap. 15, § 4, a justice of the peace, for 
this offence, may direct the offender's ears to be cropped — and this,, 
though he be a free black. In Kentucky the same general principle 
is recognised, though enforced by penalties much less severe; yet 
there, as in Maryland, free coloured persons are included : — " If any 
negro, mulatto or Indian, bond or free, shall, at any time, lift his or 
her hand in opposition to any person not being a negro, mulatto or 
Indian, he or she so offending shall for every such offence, proved by 
the oath of the party before a justice of the peace of the county where 
such offence shall be committed, receive thirty lashes on his or her 
bare back, well laid on, by order of such justice." 2 Lilt, and Swi. 
Dig. 1153. Nearly similar to this law of Kentucky was that of Vir- 
ginia, from the year 1680 to the year 1792, at which latter date the 
following exception was added: — "except in those cases where it 
shall appear to such justice that such negro or mulatto was wantonly 
assaulted, and lifted his or her hand in his or her defence ;" (1 Rev. 
Code, 426-7 ;) aad, by the last revision of her code, " a negro shall 
be punished with stripes" (not exceeding thirty-nine) " if he use pro- 
voking language ov menacing gestiu-es to o. white person," {Code of 
Virginia, 754;) and laws conceived in the same spirit are to be found 
in all, or nearly all, the codes of the slave-holding states. 

There is a section of a law in Louisiana, which, though in terms 
applying io free persons of colour only, may be properly cited to evi- 
dence the sentiments which are entertained there on this subject. 
Tlie gravity with which the strange principle it asserts is declared 
will of itself excuse its introduction here, though not altogether cou- 



INEQUALITY OF PUNISHMENTS. 69 

gruous -with the main object of this sketch : — " Free people of colour 
ought never to insult or strike white people, nor presume to conceive 
themselves equal to the whites; but, on ihe contrary, they ought to 
yield to them on every occasioji, and never speak or answer them but 
with respect, under the penalty of imprisonment, according to the 
nature of the offence." 1 Martin's Dig. 640-2. 

My chief objection to these laws is, that they furnish fi pretext, and 
(may I not say ?) an inducement, to an ignoble mind to oppress and to 
tyrannize over the defenceless slave. He must patiently endure evei-y 
species of personal injury which a white person, however brutal and 
ferocious his disposition, — be he a drunkard, or even a maniac, — may 
choose to offer. 

Several of the slave-holding states have adopted laws which are 
highly objectionable for the reason just given. The subjoined may 
be taken as a specimen : — "If any slave shall happen to be slain for 
refusing to surrender him or herself, contrary to law, or in unlawful 
resisting any officer or other person who shall apprehend or endeavour 
to apprehend such slave or slaves, &c., such officer or other person so 
killing such slave as aforesaid, making resistance,* shall be and he is 
by this act ijidemnified from any prosecution for such killing aforesaid, 
&c." Maryland Laws, act o/1751, chap. 14, ^ 9. 

And by the negro act of 1740, of South Carolina, it is declared: — 
" If any slave who shall be out of the house or plantation where such 
slave shall live or shall be usually employed, or without some white 
person in company with such slave, shall refuse to submit to undergo 
the examination of any white person, it shall be lawful for any such 
white person to pursue, apprehend, and moderately correct such 
slave ; and if such slave shall assault and strike such white person, 
such slave may be lawfully killed! P' 2 Brevard's Dig. 231. 

VI. — The penal codes of the slave-holding states bear much 

MORE SEVERELY UPON SLAVES, THAN UPON WHITE PERSONS. 

A being ignorant of letters, unenlightened by religion^ and deriving 
but little instruction from good example, cannot be supposed to have 
right conceptions as to the nature and extent of moral or political 
obligations. This remark, with but a slight qualification, is applica- 
ble to the condition of the slave. It has been just shown that the 
benefits of education are not conferred upon him, while his chance of 
acquiring a knowledge of the precepts of the gospel is so remote as 
scarcely to be appreciated. He may be regarded, therefore, as almost 
without the capacity to comprehend the force of laws; and, on this 
account, such as are designed for his government should be recom- 
mended by their simplicity and mildness. 

His condition suggests another motive for tenderness on his behalf 
in these particulars. • lie is unable to read, and, holding little or no 
communication with those who are better informed than himself, how 
is he to become acquainted with i\iQfact that a law for his observance 
has been made ? To exact obedience to a law which has not been 



* It has been decided in North Carolina that it '\?, justifiable to. kill a slave resisting 
or OFFERiNu to resist his master by force. 2 Ilay wood's licp. 5i. 



70 INEQUALITY OF PUNISHMENTS. 

promulgated — which is unknown to the subject of -it — has ever been 
deemed most unjust and tyrannical. The reign of Caligula, were it 
obnoxious to no other reproach than this, would never cease to be 
remembered with abhorrence. 

The.lawgivers of the slave-holding states seem, in the formation of 
their penal codes, to have been uninfluenced by these claims of the 
slave upon their compassionate consideration. The hardened convict 
moves their sympathy, and is to be taught the laws before he is ex- 
pected to obey them;* yet the guiltless slave is subjected to an 

EXTENSIVE system OP CRUEL ENACTMENTS, OF NO PART OF WHICH, 
PROBABLY, HAS HE EVER HEARD. 

Parts of this system apply to the slave exclusively, and for everj 
infraction a large retribution is demanded; while, wnth respect to 
offences for which whites as well as slaves are amenable, punishments 
of much greater severity are inflicted upon the latter than upon the 
former. 

With very few exceptions, the penal laws, to which slaves only are 
subject, relate not to violations of the moral or divine laws; positive 
institution is their only sanction. Thus,f if a slave is found beyond 
the limits of the town in which he lives, or off the plantation where 
he is usually employed, without the company of a white person, or 
without the written permisssion -of his master, employer, &c., any 
person may apprehend him and punish him with whipping on the bare 
back, not exceeding twenty lashes. 2 Brevard's Dig. 281 ; Prince's 
Dig. 447. In Mississippi, a similar punishment, by direction of a 
justice of the peace. Mississippi Rev. Code, 371. So also in Virginia 
and Kentucky, at the discretion of the justice, both as to the imposi- 
tion of the punishment and the number of stripes. 1 Virg. Rev. 
Code, 422; l^itt. and Swi. Dig. 1150; and see 2 Missouri Laws, 741, 
^ 2, and ibid. 014. 

And if a slave shall be out of the house, &c., or off tne plantation, 
&c., of his master, &,c., without some white person in company, &c., 
and shall refuse to submit to an examination of any white person, ^c, 
such white person may apprehend and moderately correct him; and if 
he shall assault and. strike such white person, he may be lawfully 
killed. 2 Brev. Dig. 231 ; Prince's Dig. 447, § 5, act of 1770, and p. 
348, iVo. 43, title Penal Laws; 2 CobVs Dig. 785, 972. 

If a slave shall presume to come upon the plantation of any person, 



='= "It shall be the rluty of the keeper (i. e. of the penitentiary) on the receipt of 
eiirh prisoner, to read to Jiim or her such parts of the penal laws of this state as im- 
} (>-e penalties for escape, and to mate all the j^risoners in the penitentiary acquainted 
toiUi the same. It shall also be his duty, or the discharge of such prisoner, to read to 
him or her S2(ch 2Mris of the said laivs as ivipose additional punishments for the repeti- 
tion of offences.-'' Rule 12th for the internal government of the renitcntiary of Georgia — 
sec. 24 nfihe Peniteniiary act 0/I8I6 ; Prince's Dig. 386." 

t It is proper to say that while the statement which follows in the text was, it is 
believed, entirely accurate in 1827, when it was prepared and published, chanjics 
have since been made in the laws of these states, by which many of the smaller 
offences here mentioned have been withdrawn from the power of the jwlice. This is 
especially true in respect to Virginia, to a considerable extent in North Carolina, aid 
in a slight degree in some of the other states. The gain to the slave, however, in thia 
way, is of but little value, inasmuch as the power of the master and fas agents re- 
mains almost wit/tout restraint. 



WHIPPING NO OFFENCE. 71 

■without leave in writing fi-om his master, employer, &c., not being 
sent on lawful business, the oionei- of the plantation may inflict te)i 
lashes for evei-y such offence. 1 Virg. Rev. Code, 422-23 ; Mississijjpi 
Rev. Code, 371 ; 2 Litt. and Swi. Dig. 1150: 2 Missouri Laws, 741, 
g 3 ; and see Maryland Laws, act o/1723, chap. 15, |^ 1 and 5. 

It shall be lawful /or any person Avho shall see more than seven men- 
slaves, without some white person with them, travelling or assembled 
together in any highroad, to apprehend such slaves, and to inflict a 
whipping on each of them not exceeding twenty lashes apiece.- 
2 Brev. Dig. 243 ; Prince's Dig. 454. In Delaware, more than six 
men-slaves meeting together, not belonging to one master, unless on 
lawful business of their owners, may be whipped to the extent of 
twenty-one lashes each, Delaware Laws, 104, 

If a slave or Indian shall take away or let loose any boat or canoef 
from a landing or other place where the owner may have made the 
same fast, for the first offence he shall receive thirty-nine lashes on 
the bare back, and for the second offence shall forfeit and have cut off 
from his head ONE ear. J 2 Brev. Dig. 228. 

For keeping or carrying a gun, or powder, or shot, or a club, or 
other iveapon whatsoever, offensive or defensive, a slave incurs for each 
offence thirty-nine lashes, by order of a justice of the peace, (2 Litt. 
c^- Swi. 1150; 1 Virg. Rev. Code, 423; 2 Missouri Laws, 741, ^4;) 
and in North Carolina and Tennessee, twenty lashes, by the nearest 
constable, tcithout a conviction by the justice. Haywood's 3Ianual, 52 1 . 

For having any article of property for sale, without a ticket of per- 
mission from his master, particularly specifying the same and authori- 
zing it to be sold by the slave, ten lashes, by order of the captain of 

* It is with extrome regret I have boon apprised by the newspapers that this law 
h-is been recently introduced into the Floridas by ovir territorial government thure. 
The humanity which the Spaniards manifest towards their slaves rendered such a 
measure unnecessary during the many years in which these provinces were umler 
their dominion. Scarcely is the power of our republic recognized there by the free, 
when a more galling oppression proclaims its existence to the slave. Well, indeed, 
might even the inhabitant of our slaveholding states blush with shame, wlieu a 
sense of justice wrung from him the humbling confession which he thus recorded : — ■ 
"The iaiiulgent treatment of their slaves by which the Spaniards are so honourably 
distinguished, and the ample and humane code of laws which they have enacted, and 
also enforce, for the protection of the blacks, both bond and free, occasioned many 
of the Indian slaves (i. e. of East Florida) who were apprehensive of falling into the 
power of the Americans, (i. e. citizens of the United States,) and also most of the free 
I)eople of colour who resided in St. Augustine, to transport themselves to Havana as 
soon as they lieard of the approach of the American authorities." See ^'Notices of East 
FloHda, Willi an account of the Sennnole nation of Indians, by a recent traveller in t/ie 
Province," p. 42. From the tenor of many of his remarks, the writer is evidently an 
inhabitant of one of our slaveholding states. 

The foregoing note was inserted in the first edition of this sketch. The Florida 
statute referred to may be found incorporated in the revision in 1847, Thonip?,oiis 
Digest, 640. 

t To take away a canoe, &o., for the temporary accommodation of the taker, with 
the intention of returning it again in a few minutes, is a very common practice in 
countries (such as South Carolina was at the date of this law, i. e. 1G95-6) where, from 
the paucity or poverty of the inhabitants, few bridges have been erected. The offence, 
however, of the poor slave or Im^ian would be consummated even though the owner 
should not make the discovery, and of course suffer no inconveiiieuce, till after the 
canoe, Ac, had been returned. 

X Cutting off tlie ears is no longer a punishment in ySoutli. Carolina. Act of Dec. 
19, 1833. 



72 



WHIPPING NO OFFENCE. 



the Tpa,tYo\lers, (2 Lift. ^- Sici. 981 ;) and if the slave be taken before 
a magistrate, thirty-nine lashes may be ordered. Jbid. So in North 
Carolina and Tennessee, [Haywood^ s Manual, 529 ; and see Illssissipjn 
Rev. Code, 390 ;) and in Florida, " if any slave shall barter, buy, sell 
or deliver any thing of value, (except brooms, baskets or fabrics of 
straw or rush,) without the consent in vjriting of his master, &c., 
thirty-nine stripes may be inflicted upon him." Thompson''s Dig. 
540-41. 

A slave being at an wilawful assembly,* the captain of patroK^-rs may 
inflict ten lashes upon him. 2 Mitt. ^ Sici. 2 3Iissouri Laics, 741, | 2, 
and ibid. 614. If taken before a magistrate, he may direct thirty-nine 
lashes. 2 Litt. .j- Swi. 981. 

For travelling by himself from his master's land to any other place, 
unless by the most usual and accustomed road, the owner of the land 
on Avhich such slave may be found is authorized to inflict forty lashes 
upon him. Haywood's 3Ianual, 518, {act o/" 1729.) For travelling 
in the night, without a pass, forty lashes, [ibid. ;) or being found in 
another person's negro-quarters or kitchen, forty lashes, {ibid. ;) and 
every negro in tvhose company such vagrant slave shall be found incurs 
also twenfy lashes. {Ibid.) 

Any person may lawfully kill a slave who has been outlairedf for 
running away and lurking in swamps, &c. &c. Hayivood's 3Ianual, 
521-2; Revised Statutes, 577-8. 

For hunting with dogs, in the woods even of his master, the slave 
is subjected to a whipping of thirty lashes. Haywood's JIanual, 524, 
{act 0/1753.) 

A slave endeavouring'^ to entice another slave to run away, if pro- 

. * The augmentation of crimes under the name of unlawful assemblies is a favourite- 
measure of despotic g^overnments for the suppression of liberal principles. In this 
country, the experiment has never been tried by statutory provisions, except in re- 
ference to the black population. The reader will recollect that in the chapter treat- 
ing of education and religious privileges, several acts of the slave-holding states were 
given, in which these unlawful assemblies were spoken of. A complete enumeration 
of the crimps thus created (for all of which slaves are severely punished) would swell 
th's branch of the subject beyond its appropriate limits. 

t Such was once the law of Virginia also. " In 1705, two justices of the peace were 
authorized by proclamation to outlaio runaways, who might thereafter be tilled and 
destroyed by any person Avhatsoever, by sucJi ways and means as he might think tit, 
without accusation or impeachment of ?,ny crime for so doing." Speaking of this 
law and some others of a kindred nature, Judge Tucker, professor of law in the Uni- 
versity of William an-d Mary, Virginia, observes — " Such are the cruelties to which a 
.state of slavery gives birth; such the horrors to which the human mind is capable 
of being reconciled by its adoption." And, again, says the same respectable writer, 
♦• In 1772, some restraints were laid upon the practice of outlawing slaves, — requiring 
that it should appear to the satisfaction of the justice that the slaves were outlaying 
and doing mischief. Tliese loose expressions of Vie act left too mndi in the discretion of 
men not mucfi addicted to weighing tticir impm-t. In 1792, every thing relative to tlse 
outlawry of slaves was expunged from our code, and / trust will never again find a 
plane in it." Sse Ap^xndix to BlacAstone's Commentaries, seccmd part, p. 56-7. How 
long will it be before such sentiments prevail in North Carolina ? 

X The original section creating this crime was in these words :— " Every slave who 
shall endeavour to delude or entice any slave to run away and leave this province, 
every such slave and slaves, and his and their accomplices, aiders and abettors, shall, 
upon conviction as aforesaid, suffer death." 2 Brevard's Digest, 2?>3. act of 1740. 
After an experiment of eleven years' duration, the legislature relented so far as to 
declare, " That whereas by, &c. of the act entitled, &c. it is (among other things con- 
tained) enacted 'That every slave who shall endeavour to delude or entice any slavo 



WHIPPING NO OFFENCE. 73 

visions, &c., be prepared for the purpose of aiding in sucli running 
away, shall bo punished with death. 2 Brevard's Dig. 233 and 244. 
And a slave who shall aid and abet the slave so endeavouring to en- 
tice another slave to run away shall also suffer death. Ibid. 

If a slave harbour, conceal or entertain another slave being a run- 
away, in South Carolina and Georgia, he is subjected to corporal 
punishment to any extent not affecting life or limb. 2 Brevard's 
Dig. 237 ; Prince's Dig. 452. In Maryland, thirty-nine stripes is the 
penalty for harbouring one hour. Act o/ 1748, ch. 19, | 4. 

A slave for being on horseback without the tvritten permission of his 
master incurs twenty-five lashes. (1 llartin's Dig. 622;) for keeping a 
dog, the like punishment, (1 Rev. Code Mississippi, 379 ;) for killing a 
deer, though by the command of his master, overseer, &c., unless such 
command can be proved by a ticket in tcriting, twenty lashes, (2 Bre- 
vard's Dig. 246 ;) and in Florida, for fire-hunting, ox keeping a horse, a 
boat or canoe, thirty-nine lashes, [Thompson's Dig. 541;) ^^ for being 
guilty of rambling, riding or going abroad in the night, or riding horses 
in the daytime tvithout leave, a slave may be whipped, cropped, or 
branded on the cheek with the letter Pt, or otherwise punished, not 
extending to life or so as to render him unfit for labour." Act of Mary- 
land of ll^l, ch. 14, I 8. 

If a slave beat the Patuxent River, (which is sometimes done for the 
purpose of taking fish,) ten lashes. Maryland Laxcs, act o/1796, ch. 
32, \ 8. And if he place a seine across the Transquakin and Chick- 
wiccomico Creeks, a justice of the peace may order him to receive 
thirty-nine lashes. Ibid, [act o/1805,) ch. 31, § 3. 

In conclusion of this branch of the present section may be added 
an act of Assembly of the state of Mississippi, of great cruelty, re- 
lating to runaway slaves. It is entitled an act to amend an act enti-. 
tied "An act to reduce into one the several acts concerning slaves, 
free negroes and mulattoes," and may be found among the laws of 
the session of 1824. The first section is in these words : — "When 
any slave or slaves shall be committed to any jail in this state, as a 
runaway or runaways, it shall be the duty of the. jailer of said caunty 
to interrogate him, her or them as to his, her or their owner's or 
owners' name or names and place of residence ; and the account thus 
received, together with a description of the slave or slaves, the jailer 
shall forthwith transmit by male to the owner or owners named by the 



to run away and leave this proTince shall upon conviction suffer death,' -which is a 
punishment too great for the nature of the offence, as such offender might afterwards 
alter his intentions, Bo it therefore enacted, That such part of the said paragraph as 
relates only to slaves endeavouring to delude or entice other slaves to run away and 
leave this province shall not operate to take effect, unless it shall appear that such 
slave (so endeavouring to delude or entice other slaves to run away and leave this 
province) shall have actually prepared provisions, arms, ammunition, horse or horses 
or any boat, canoe or other vessel vjherclnj their intentirm shall be manifested." 2 Brev. 
Dig. 244. act of 1751. It is hardly necessary to remind the intelligent reader that 
t\\Q principle upon which the act of 1740 was founded is retained in the amendment 
of 1751. The endeavour on the part of a slave to entice another to run away is, in 
both laws, regarded as a crime worthy of death. What shall constitute the evidence 
of this endeavour is defined in the amendment, — namely, "the preparing provisions, 
ic. wherehij t/ie intenti'/ti shall be manifest'd." And this is the only melioration of a 
law which it is acknowledged, in the same breath, imposed a punishment too severe 
fi>r tbe offence '. 1 And such is still the law. after the lapse of a ccntui-y. 



74. MISSISSIPPI EUNAWAY LAW. 

slave ; and if the statement made by said slave or slaves shall prove 
to be false, it shall be the duty of the jailer, -without delay, to give 
the said slave or each of them twenty-five lashes, well laid on, and 
interrogate him, her or them anew, and transmit the intelligence ob- 
tained, together with a description as aforesaid, to the owner or 
owners again named, and whip as before directed, if a second false 
account is given ; and so on, for the space of six months, it shall be the 
duty of the jailer alternately to interrogate and whip as aforesaid, 
whenever the said slave or slaves may give a false account of his, her 
or their owner's or owners' name and place of residence." 

To appreciate fully the cruelty of this law, it should be noticed 
that this entire administration, inquisitorial and punitive, is confined 
to a single person, — the jailer, — who, from the nature of his office, 
must have the slave wholly within his power ; and yet for the abuse 
of this power, in a case within the meaning of the act, he may be re- 
garded as altogether irresponsible to any one. Without any design 
on the part of the slave either to pervert or to conceal the truth, it is 
highly probable that his statement will, in many instances, be false, 
and in many more appear to be so. For the state of Mississippi is, 
as to the greater part of it, uncultivated and uninhabited ; it is divided 
into but few counties ; the number of post-offices which have been 
established there is very small, and the names of the proper post-toivn 
must be frequently unknown even to wldle inhabitants, whose means 
of information are vastly superior to what the slave possesses. The 
master's place of residence, which is mentioned in the act, may be 
very remote from the post-office, and, should il be known to the slave, 
would afford but little assistance to the jailer as to the endorsement of 
his letter to the master. As overseers are usually employed on plan- 
tations, it will not be thought strange that the ignorant slave should 
not be acquainted with his master's name, especially his Christian 
name. Proper names, both of men and places, are frequently spelled 
very diff'erently from what the pronunciation would teach ; and jailers 
are not ordinarily selected for good scholarship or extensive informa- 
tion. Added to the whole, it should be recollected that miscarriages 
of letters, even when carefully and correctly endorsed, occur not 
seldom, from the ignorance or inattention of postmasters. Notwith- 
standing all these considerations, the jailer may, in Ms discretion, de- 
termine when the slave's statement is false, and, having inflicted the 
legal measure of flaggellation, may repeat the same punishment, again 
and again, for the space of six months, — or to use the language of the 
act, so characteristic of that callousness to the slave's sufferings which 
familiarity with cruelty begets, — " and so on, for the space of six 
months, it shall be the duty of the jailer alternately to interrogate 
and whip as aforesaid." 

I come now to the exemplification of the second branch of this 
chapter, which may be stated in the following proposition : — The 

PENAL CODE OP THE SLAVE-HOLDING STATES INFLICTS PUNISHMENTS OP 
MUCH GREATER SEVERITY UPON SLAVES THAN UPON WHITE PERSONS 
CONVICTED OF SIMILAR OFFENCES. 

In treating ci this proposition, I place before the reader at the out- 



CKIMIKAL CODE OF VIRGINIA. 75 

set synopses of the penal codes of two of the states, — Virginia and 
Mississippi, — so far as may be requisite to comprise the offences which 
are punishable by death in regard to any class of perpetrators. 

Virginia, it will be seen, discriminates in punishments not only in 
respect to tchites and slaves, but between free coloured persons and 
slaves. In this state, whites are punishable with death for four of- 
fences: — 1. Treason; 2, Murder of the first degree; 3. Maliciously 
burning in the night the dwelling-house of another, or a Jail, in- 
habited AT THE TIME BY ANT PERSON ; 4, Maliciously setting fire to 
ANY THING, whereby a dwelling-house of another, or a jail, shall be burnt 

IN THE NIGHT-TIME, AND BEING THEN INHABITED BY ANY PERSON. 

Treason is a crime of which a slave, as such, cannot be guilty. The 
following table is restricted to crimes which, when committed by 
whites, are not punished by death, nor even when committed by free 
coloured persons is this the fixed punishment without alternative in any 
one of these offences, whilst in the major part a term of imprisonment 
only is imposed. But death is the penalty to slaves in every case 
enumerated. 



CRIMINAL CODE OF VIRGINIA. 



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CRIMINAL CODE OF VIRGINIA. 



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CRIMINAL CODE OF MISSISSIPPI. §1 

I insert on the ^fo-^^'^J^^^^'^'^l^^^'' 
former edition oftl^.'^^";.-^^ .^^^ "^'S/S: tare com-icts. Whether 
in the state otjl/mwy;-., between »«<^ ^^^^ j ^^,^ 

any change in this respect has been »»" ^„^^^^, I i„e 

1. Murder. 

2. Robbery. 

3. Kape. 

4. Burglary. ir„„ -hm-i^P a store, a cotton-house ov 
>hour J? a'Sr/SUtSriUU,:. a;>3oinin, to a a.eU- 

ing-liouse or store. 

6. Horse-stealing, second offence. 

l"o: IZl ZTio.^ before the fact to Robbery 

11. Beinl accessory before '^'J^'''"J^'l$^^^^ 

12. Tor rescuing a person convicted of a cap ^^^ jj ^i,l be 

ser„Vi"eXoti:K:ttJf ^ence is made according 
as the offeoder is a slave or free ^hite person. 

,.Thecii„, of HighTrea.0., l«ln. appUcaWe to the c..aU,on of aslave,., p^r- 

posely omitted. 



82 



CRIMINAL CODE OF MISSISSIPPI. 



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CRIMINAL CODE OF MISSISSIPPI. 



83 




i S ?^ ?^ s^ ^_M^^il^«^^A 



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«4 INEQUALITY OF J^UNISHMENTS. 

One of the provisions In the Constitution of Alabama is, "U shall 
be the duty of the General Assembly, as soon as circumstaureM will 
[jeiniit, to forju a penal code, fouudeJ on the principles of reformation 
and not of vindictive justice." 

The penal code which has been adopted, so far as respects free 
■white penam, couforins generally to this requirement. There are no 
crimes, v?hen committed by white persons, for which death \& affixed 
as the proper and positive sentence of the law. There are six which 
may be so punished, but none which mmt be. The alternative, '« con- 
iiiiement in the penitentiary for life," may be granted in these cases by 
ihQjury by whom the accused has been found convict. These are— - 
IreuHon; murder in the first degree; aidiny a dave or slaves in an actual 
or meditated rebellion or insurrection against the ivhite inhabitants ; aidiny 
the same ayamst thelawa andgovernmenlofthe state; ov advising, consult- 
my or plottiny with any slave or slaves, for the purpose o( encourayiny, 
excitiny, aidiny or assistiny in any such rebellion or insurrection, either 
actiHil or meditated; for causing, with malice aforethouyht, the death of 
a dave, by cruel, barljarous or inhuman whippiny, or by any crud or 
mhuman treatment, or by the use of any instrument in its nature calcu- 
lated to produce death. Clay's Liyest, 4il-ia. 

It is manifect, however, that the legislators of this state liave 
not considered slaves, when convicted of crime, to be comprehended 
withm the benignant spirit of the Constitution. For the catalogue 
of crimes for which they are subjected to the penalty of death as 
the hxed and sole punishment without any alternative, is extensive 
and hideous. J'hey ar(i,-~consultiny or conspiriny to rebd or be in my 
wise concerned in an insurrection or rebellion of the slaves ayainstthe white 
inhabitants of the state, or the laws and yovernmenl thereof ; cr co aspirin o 
to murder any ivhite person; for murder; for an assault with an intent 
to kill any white person; for the voluntary manslauyhter of a white per- 
son ; tor the involuntary manslauyhter of a ivhite person in the prose- 
cution of an unlawful act; yY/y;.on awhile female; for an a ttLpt to 
comnut such rape; fur burglary ; for robbery ; for an assault and bJttery 
w th intent to rolj a white person; for ivilfully maiminy ; for cuttiny or 

bitmy of the nose of a white person ; for an attmipt to poison or de- 
prive aiiy white person of life by any means not amounting to assault • 
for Wilfully and maliciously settiny fire to or burniny any dwelliny-house 
01 out-house appurtenant thereto; or the like offence as to 




A,,,, , ., . , ,. • -yigating the waters of the state. 

offenct hv f '^f ^'f ^'' i".''" ^'^'''^'^ ^^^^^-^y ^« »"'^"y '"o^-e capital 
i.FroKr iK Ti^ ''^ ^''T.?^ ^^'' ''"^^'''''''^ ''''''''' =-*' All acccsL-ies 
leemcd ^u,{r 1 ^"^ f *''' f '''''' J»eretofore enumerated shall be 
cunul PiUNOiPALs, and may be tried, though the principal offenders 
be not taken or convicted." Clai/'s J)iy 4T> 

And whilst offences by slaves to the pers'ons and property of the 
vlnnlT T *^\"%«^verely vindicated, the ve?y Lxt^sect n 
t . fhui vvhnd, has been ju.t rpioted is in these words :-" Every slavt* 



INEQUALITY OF PUNISHMENTS. 85 

who shall be guilty of the manslaughter of a slave, free negro or 
MULATTO, and be thereof convicted, shall be punished by any number 
of stripes not exceeding thirty-nine, or be branded in the hand, or 
both, at the discretion of the jury." Ibid. 

The existing code of Florida enumerates distinctly twenty-three 
offences for which, as to slaves, the punishment is death ; three others 
which may be so punished, or by whipping not exceeding thirty-nine 
stripes, having the ears nailed to posts, and in this condition standing 
one hour, or having the hand burnt with a heated iron in open court, 
at the discretion of the court. Thompso7i's Digest, 490, 637-8. So, 
attanpting to commit any capital offence, by a slave, and being an 
accessory thereto, are subject to the same alternatives of death or 
stripes, nailing the cars to posts, or branding in the hand. Altogether, 
the offences in this state which may be punished capitally number 
nearly seventy. 

It would enlarge this chapter .beyond its proper limits, to furnish 
in cxtenso a similar view of the punishment of the offences in each of the 
slave-holding states. I shall content myself, therefore, by indicating 
the difference which is made in the remaining states as to the severity 
of the punishments to which slaves and white persons are severally 
subjected in a more general manner. 

The penal code of Georgia has within the last twenty-five years 
become exceedingly sanguinary. At the present time there are not 
less than thirteen offences for which tchite persons are punished capi- 
tally. See 2 Cobb's Digest, 782-3, 786, 789-90, 804-6, 811. And 
slaves are so punished for tiventy. See 2 Ibid. 786, 806, 976, 987, 
995-6, 1002. 

Besides this punishment, slaves may be subjected to very severe 
punishment, in virtue of the following provision : ... " All other offences 
committed by a slave or free person of colour, either against persons 
or property, or against another slave or person of colour, shall be 
punished at the discretion of the court, such court having in view the 
principles of humanity in passing sentence ; and in no case shall the 
same extend to life or limb." Act 0/I8I6, § 2, 2 Cobb's Digest, 987. 

In Tennessee, whites are punished by death for tico offences: — 1. 
Murder of the first degree ; 2. Being an accessory to such murder 
before the fact. Capital offences by slaves are eight: — 1. Murder; 2. 
Arson; 3. Burglary; 4. Robbery; 5. Rape, [act of 1819; Carruthers 
^ Nicholson,-^. 679 ;) 6. Assault on a white woman, with intent to 
commit a rape, {act of 1833, ib. 683 ;) 7. A conspiracy by three or 
more slaves to rebel; 8. A conspiracy of like numbers to murder any 
person, {act of 1741, ib. p. 674.) But in regard to the tico last offences, 
by act of 1831, the judges may, at their discretion, substitute for the 
(/eai;/i-penalty stripes, and standing in the pillory, and confinement in 
the county jail. /i. 682. 

The penal code of Missouri inflicts death upon tvhifes for four of- 
fences: — 1. Treason; 2. Murder; 3. Raising a rebellion of slaves ; 
4. Aiding such rebellion, by furnishing arms, or doing any other overt 
act in furtherance of such rebellion. Missouri Digest, 341-2. And on 
slaves for — 1. Murder ; 2. Raising a reb-ellion; 3. Entering into an agree- 
ment io rebel; 4. .Conspiring i\xQ &Q^ih. of any person, or to commit 

.8 



86 



WHIPPING TO DEATH. 



nrson in furtherance of such conspiracy, if any overtmtjn further^ 
ance of such conspiracy be done. 'H^*'*' 

In Kentuckf/, whites"^ forfeit life for four crimes o^;* viz. •— 1 
Murder; 2. Wilfully burning the penitentiary; 3. Being accessory 
thereto before the fact: 4. The carnal abuse of a female child under 
ten years of age. 2 Lift. ,^' Swi. 1006-9. Slaves meet a similar pun- 
ishment f r eleve^i crimes. These are:— 1. Murder: 2. Arson; 3 Rape 
on a white woman ; 4. Robbery ; 5. Burglary ; G. Conspiracy to rebel • 
/. Administering poison with an intent to kill; 8. Manslaughter; o' 
AttemjJting to commit a rape on a white woman ; 10. Shooting at a 
white person with an intent to kill ; 11. Wounding a white person with 
an intent to kill. See 2 Litt. cf Su-i. 1060-6-4. 

_ There is a difference in the punishment of tchite offenders and slaves 
in this particular: — 

For voluntary manslaughter, a lohiie person is punishable by impri- 
sonment at hard labour not less than hco nor more than four years 
Act 0/ 1825, 2 Morehead ^^ Broicn's Digest, 1 294. But a slave for the 
same offence, is punished with death; and (he snr^e punishment is in- 
flicted on a slave for shooting at a white pt-rsou ivith intent to kill. 
2 Morehead ^ Broim, 129L 

For maliciously blowing up, or attempting to blow up, with gunpow- 
der, .Sec, any of the lochs of the Louisville and Portland Canal the 
punishment of a white offender is confinement in the penitentiary for 
not less than two nor more than four years. And for a similar of- 
tence, in regard to the bridge over the same canal, committed by a 
jr^?/e person, a similar penitentiary punishment ; whilst in regt.rd to 
both of these offences by a slave, the punishment is death. 2 iMore- 
head ^ Broicn, 1304, {act o/1833.) 

All other offences, when perpetrated by slaves, are punishable with 
whipping only, not exceeding thirty-nine lashes, except for advising the 
murder of any person : for this offence one hundred lashes are author- 
ized to be given. 2 Litt. ^" Swi. 1161-2. 

Ccipital felonies abound in South Carolina. White persons suffer 
death therefor tiventy-seven offences, in tivcntr/-three of y^hich the ben- 
efat of clergy is not allowed. Slaves incur a similar fate for thirty-six 
offences. From the most of these, also, the benefit of clergy has been 
taken away Simple larceny, to the value of one dollar and seven 
cents, whether perpetrated by a white person or a slave, is a capital 
alTIhsTemealrT^^^ See ./a/zec.' Digest, title Crimes 

The capital fences in JVorth Carolina, according to her Eevised 
statutes of 1838-/, exceed in number those even of South Carolina^ 

nif^y^un- 'q?.''' *«f ^f °^fi* ^f ^lf'^?y i« tal^en away entirel>/ as to white persons. 2 
Litt. d Swi 985. Blacks and mulattoes, Tvhether bond or free, are allowed a nriTr. 
Ieg™et./.«; resembling it i.. a commutation of capital punishmeSTfor 'S 

f A distinction is made by fcrprcss law in South Carolina between males nnd 
Sbr'^wTV t '^°f/i'■''^f '^ "T^^T^- ^«*'^ «^'« t« ^^ marked in the hand upon 
\^lron V .* n ^^^^ *.^"'"^.' T^^^ ^ ^urning.hot iron, havin- a Roman M or T upoS 
^nn,- 1?^ °? *° ";' ''t*'''" ''^*^^ ?"™^- ^"t ^ '««?^^s discharged without /»X? 
^.Z^nfn^lL •^,'"''^' maybe tt;7»ppecf,p?a«d in the stools, or imprisoned for he 
space of a year afterwards, at the discretion of the court. Jakes' Digest, 97-9 



IMPRISONMENT WHEN. 87 

Whites, as well as davcs, suffer death for at least tliirty-four offences; 
aud slaves suffer for six more. See Revised Statutes, 191-5, 580-1. 
Besides these offences which can be so punished after a judicial con- 
viction, a slave for resisting his master by force, (2 IlauwoocVs Rep. 
54,) or OUTLAWED for running aicay, lurking m swamps, &c., and not 
returning home immediately, may be killed by anybody, "by such 
means as he shall think fit, without accusation or impeachment of any 
crime for the same." Revised Statutes, 577-8. 

Of the spirit whicli once breathed in Maryland against negroes, the 
reader will be instructed by an act passed in 1729, (ch. 4,) in the fol- 
lowing words : — " Whereas several petit treasons and cruel and horrid 
murders have been lately committed by negroes; which cruelties they 
were instigated to commit, and hereafter may be instigated to com- 
mit, with the like inhumanity, because they have no sense of shame, 
or apprehension of future rewards or punishments ; and that the man- 
ner of executing offenders, prescribed by the laws of England, is not 
sufficient to deter a people from committing the greatest cruelties, 
who only consider the rigour and severity of punishment; Be it 
enacted, &c., that when any negro or other slave shall be convicted, 
by confession or verdict of a jury, of any petit treason or murder, or 
burning of dwelling-houses, it shall and maybe lawful for the justices 
before whom such convictions shall be, to give judgment against such 
negrc'S^-i'^her slave, to have the right hand cut off, to be hanged in the 
usual mmner, the head severed from the body, the body divided into four 
quarters, and the head and quarters set up in the most pvblic places of the 
county were such fact was committed! P^ The barbarous provisions of 
this law, it will be seen, were not made compulsory with the justices 
before whom the conviction might take place, but were intrusted to 
their discretion. And, as "the declaration of rights" prefixed to the 
Constitution of Maryland contains the following among other just 
principles, "That sanguinary laws ought to be avoided, as far as is 
consistent with the safety of the state, and no law to inflict cruel and 
unusual pains and penalties ought to be made, in any case or at any 
time hereafter," no justice, I presume, would venture, in the exercise 
of his discretion, to give in his sentence full scope to the savage power 
confided to him. Yet it cannot but move our wonder that the act it- 
self has not been annulled. The last AurnoRizED edition of the laws 
of this state which I have examined comprises it among the laws still 
in force. 

It is apparent, from the views given in this chapter, that slaves 
offending against the laws are subjected chiefly to two species of pun- 
ishment, — ii'hip)ping and death. Cropping and the pillory are seldom 
directed, unless in conjunction with whipping. In several of the 
states, transportation is authorized, upon certain conditions, as a com- 
mutation for the sentence of death. See 1 Virginia Revised Code, 430 ; 
Haywood's Manual, 544; Maryland Laws, (act of 1809,) ch. 138, § 9, 
and act of 1819, ch. 159. Putting in irons, and while so made to 
labour for his master, is practised in Louisiana, 1 Martifi^s Dig. 688. 
As a mode of securino the person of a slave labouring under an ac- 
cusation of crime previous to his trial, from necessity, irnprisonment^ \b 

* The following provision is contained in an act of the legislature of Virginia ;— 



88 MODE OF TRIAL. 

resorted to. But as a ^^'^inishment after conviction, except in the state 
of Louisiana, where the laws have in some measure recognised its 
adoption, it appears to be almost unknown. In an act of Assembly 
of this last-mentioned state, juries convoked for the trial of a slave on 
a charge not cajntal may direct the slave to be imprisoned not exceed- 
ing eight clays. 1 3Iartin's Dig. 688 {act of March 19th, 1816.) Im- 
prisonment for life is mentioned several times in the laws of the same 
state, as a known punishment for slaves ; yet for what offences and 
under what circumstances it is authorized I have not been able to 
ascertain. See ibid. An act of Assembly, posterior in point of time 
to the publication of the work just cited, vests the power in the 
governor and senate to commute the punishment of death into a lesser 
punishment in favour of slaves, upon the recommendation of the judge 
and jury by whom the offender has been tried, if the circumstances 
of the case shall be such as may be thought to entitle him to such 
commutation ; and aniong these lesser punishments perpetual impri- 
sonment is named. Act of March bth, 1822. 

This exclusion generally of imprisonment as a mode of punishment 
for slaves has led, it is believed, to the multiplication of capital 
offences as to this class of people. Dismemberment, as it would in general 
diminish the value of the slave, and partakes so largely of savage 
ferocity, has probably at no period been much tolerated. For a soli- 
tary offence, however, it is authorized in Missouri. 1 Missouri Laws, 
312. 

Corporal punishment not extending to life or limb, (which is an- 
other name for excessive whipping,) though sanctioned in several 
cases, must be open, in a great degree, to the objections which apply 
to dismemberment. It is presumable, on this account, that it is not 
frequent in practice. In general, therefore, death has been resorted 
to as the only punishment, according to the sentiments of slave- 
holders, adapted to a state of slavery, for all offences except those of 
a trivial nature. 

VII. — Trial op slaves upon criminal accusations is in most of 

THE slave states DIFFERENT FROM THAT WHICH IS OBSERVED IN RE- 
SPECT. TO FREE WHITE PERSONS; AND THE DIFFERENCE IS INJURIOUS 
TO THE SLAVE AND INCONSISTENT WITH THE RIGHTS OF HUMANITY. 

Trial by jury has been fi-equently and justly extolled as the palla- 
dium of civil liberty. As it existed in full vigour in England when 
the settlement of this country began, by the principles of colonization 



" Whenever the master or owner of any slave shall desire to confine him in the jail of 
any county or corporation within this commonwealth, it shall be lawful for any justice 
of the peace, in such county or corporation, upon application of such master or 
owner or his agent, to grant a warrant to the jailer, authorizing him to receive such 
slave into custody, and to confine him in said jail ; provided, such justice be of opi- 
nion that such slave may be so confined without public inconvenience," &c. The 
duration of this confinement is made to depend on the ma'^ter's will, unless the 
public convenience should require the slave's discharge. Act of Assembly of Feb- 
9-?m?'?/ 25 </(, 1824-, § 4, entitled "An act concerning servants and slaves." A law of 
Miss'iu7-i nearly similar to this, though less exceptionable, I have noticed in a previ-us 
)>ai;c. The remarks there made may, with equal appositeness, be repeated Icie. 
l^'.e stipra, p. 70. 



MODE OF TRIAL. 89 

it w.is imported by our ancestors as part of the laws and customs of 
tlio mother-country applicable to their new situation. But African 
.s'avci'y having originated in the foulest iniquity, it was natural that 
it should be sustained and perpetuated by consentaneous means. 
Accordingly, in but few, if in any, of the colonies, was trial by jury 
allowed to the slave. And thus it happens that, though the Const - 
tution of the United States, as well as most of the Constitutions of 
the individual members of the confederacy, secure to the citizen, im- 
peached of crime, the benefit of this institution, yet, as this has been 
done through the medium of language which does not embrace the 
case of the slave, but has reference to precedent usage, he is left, in this 
particular, in the like condition of exclusion in which he stood under 
the colonial government. 

A considerable diversity, however, obtains on this subject in the 
different states. In Kentucky, a slave charged with an offence pun- 
ishable ivith death is entitled to the benefit as well of the grand as of 
ih.^ petit jury. He is to be "tried and prosecuted in the circuit 
courts only, and in the same manner, and under the same forms of 
trial, as are by law prescribed in the cases of free persons." Act of 
Feb. 10th, 1819, 2 Litt. ^ Sici. 1164; 2 Morehead ^ B. 1291. And 
the law is equally favourable in Tennessee, [Nich. ^ Caru. 683.) In 
Georgia, on capital charges no provision is made for the interposition 
of the^/ranc? jury ; yet the right of trial by ^ petit yxv^, with the privi- 
lege to the master of challenging seven persons on behalf of the slave, . 
is expressly directed and sanctioned. Prince's Dig. 459. By the 
Constitution of llississippi it is declared, "In the prosecution of- — 
slaves for crimes, no inquest by a grand '^ury shall be necessary; but 
the proceedings in such cases shall be regulated by law, exaept that 
in capital cases the general assembly shall have no poiver to deprive 
them of an impartial trial by a petit jury." The act of Assembly 
which has been passed to carry into effect this article of the Consti- 
tution grants to the slave, on his trial for a capital offence, nearly all 
the advantages of a petit jury (except as to witnesses) which are pos- 
sessed by whites. Mississippi Rev. Code, 382. Art. 3, ^ 27, of the 
Constitution of Missouri, is in these words: — "In prosecutions for 
crimes, slaves shall not be deprived of an impartial trial by jury; 
and a slave convicted of a capital offence shall suffer the same degree 
of punishment, and no other, that would be inflicted on a free white 
person for a like offence ; and courts of justice before whom slaves 
shall be tried shall assign them counsel for their defence." Similar 
in Arkansas; art. 4, ^ 25. In the Constitution of Alabama a pro- 
vision is inserted, denying to the General Assembly power to deprive 
slaves of an impartial trial by a petit jury, when prosecuted for a 
crime " of a higher grade than petit larceny. See Constitution, title 
Slaves, ^2. A -declaration is comprised in the bill of rights which 
forms a part of the Constitution of Marylacd, (and also in the Consti- 
tutions of several of the other states,) of the following tenor: — " That 
in all criminal prosecutions every man hath a right to be informed of — 
the accusation against him ; to have a copy of the indictment or 
charge in due time (if required) to prepare for his defence; to be 
allowed counsel ; to be confronted with the witnesses against him ; 
8* 



90 MODE OF TRIAL. 

to have process for his -witnesses; to examine the witnesses for and 
against him, on oath ; and to a speedy trial by an impaktial jury, 
without lohose unanimous consent he ought not to be found guilty ^ Decl. 
of Rights, 19; and see Const, of Alabama, title Decl. of Rights, 10; ibid, 
of Mississippi, tit. ibid. 10; ibid, of Missouri, ibid. 9, ^c. ^c. A citizen 
of one of the free states would unhesitatingly construe this declara- 
tion to be a constitutional guarantee to the slave of the trial by jury 
upon every criminal accusation. In the slave-holding states, how- 
ever, it has no such meaning. By reference to the Constitutions of 
Alabama, Mississippi and Missouri, as above noted, the same pro- 
visions will be found embodied there, in terms equally strong and 
explicit ; — indeed, in nearly the same as those contained in the Con- 
stitution of Maryland as above cited. And yet quotations taken from 
tlie same instruments, and already transcribed into this chapter, evi- 
dence in the clearest manner that slaves are not considered as em- 
braced by such provision. And in relation to the state of Maryland, 
the following law compels us to the like conclusion: — "Whensoever 
any negro, Indian or mulatto slave shall hereafter be charged with 
any pilfering or stealing, or any other crime or misdemeanour where- 
of the county court might have cognizance, it shall and may be lawful 
for any of the justices of the provincial or county courts, upon com- 
plaint made before him, to cause such negro, Indian or mulatto slave 
so offending to be brought iuimediately before him or any other jus- 
tice of the peace for the county where such offence is committed, 
who, upon due proof made against any such negro or (Indian) or 
mulatto slave of any of the crimes as aforesaid, such justice is hereby 
authorized and empowered to award and cause to be inflicted, according to 
the nature of the crime, such punishment by whipping as he shall think fit, 
not exceeding forty lashes." Act of 1717, ch. 13, | 6, This law, not- 
withstanding that it abrogates the right of trial by jury in the case 
of slaves accused of the offences enumerated in it, is given as in force, 
in an edition of the laws of the state, published under the express 
sanction of the legislature in 1799, (twenty-three years after the 
adoption of the Constitution,) and in other more recent editions. But 
wherever the life of the slave is the penalty of crime, no exception 
can be taken to the tribunal which decides upon his fate in this state; 
trial by jury is then allowed. Maryland Laws, [act o/1751,) ch. 14. 

The Constitution of North Carolina guarantees trial by jury io free- 
men only. It declares "That no freeman shall be put to answer any 
criminal charge but by indictment, presentment or impeachment. That 
no freeman shall be convicted of any crime but by the unanimous verdict 
of a jury of good and lawful men, in open court, as heretofore used." 
Se Bill of Rights, ^§ 8 and 9. But by statute, except in petty offences, 
of which a single justice of the peace has jurisdiction, trial of slaves 
for offences not capital takes place before courts of Pleas and Quarter 
Sessions, and is "to be conducted under the same rules, regulations 
and restrictions as the trials of freemen;" and generally, in cases in 
which a slave is charged with the commission of an offence the pun- 
ishment of which may extend to life, the superior courts of law have 
exclmive jurisdiction, and the mode of trial is the same as obtains 
in respect to whites; and it is humanely provided that the judge of 



justices' and feeeholders court. 91 

Che court, on au application for the purpose, on behalf of the slave, 
by his master or his counsel, founded on an atfidavit that a fair trial 
cannot be had in the county wherein the offence is charged to have 
been committed, may order the removal of the case to an adjacent 
court for trial. Rev. Statutes, ch. Ill, ^^ 42-4; and "in all cases 
where the county or superior courts shall have jurisdiction of 
offences committed by slaves, the slave charged shall be entitled to a 
trial hy jury of good and lawful men, owners of slaves," (^ 45;) 
and "a slave shall not be tried for a capital offence, but on present- 
ment or indictment of the grand jury; and the same right to chal- 
lenge jurors is accorded to him, his master or counsel, where the 
offence is capital, as a freeman is entitled to." ^ 46. In Tennessee 
(by act 0/1835, ch. 19) the law on this subject is much the same as 
that of North Carolina, with an additional advantage to the slave, in 
capital cases, of counsel to be assigned by the court, should the mas- 
ter neglect to employ any; and the master is bound to pay such a /)/' 
to counsel as the court may direct. C. <^' N. 680. 

But trial by jury is utterly denied to the slave, even in criminal ac- 
cusations wliich may affect his life, in the states of South Carolina, 
Virginia and Louisiana ; and the tribunal which is made to serve 
as its substitute can boast of none of its excellences. This tribunal 
is usually styled "the Justices' and Freeholders' Court." Its consti- 
tution, and the manner in which its proceedings are conducted, will 
be best conveyed to the reader by a transcript of the act of South 
Carolina: — ^^All crimes and offences committed by slaves in this state, 
for which capital punishment may lawfully be inflicted, shall be heard, 
examined, tried and adjudged, and finally determined, by any two 
justices of the peace, and any number of freeholders not less than 
three nor more than five, in the district where the offence shall be 
committed, and at a place where they can be most conveniently as- 
sembled; either of which justices, on complaint made on information 
received of any such offence committed by a slave, shall commit the 
offender to the safe custody of some constable of the district, and 
shall without delay, by warrant under his hand and seal, call to his 
assistance and request any one of the nearest justices of the peace to 
associate with him; and shall by the same wai-raut summon the 
number of freeholders aforesaid from the neighbourhood to assemble 
and meet together with the said justices, at a certain day and place, 
not exceeding six days after the apprehending of such slave or slaves, 
&c. ; and the justices and freeholders, being so assembled, shall cause 
the slave accused or charged to be brought before them, and shall 
hear the accusation that shall be brought against such slave or slaves, 
and his, her or their defence, and shall proceed to the examination 
of witnesses and other evidence, and finally hear and determine the 
matter brought before them in the most summary and expeditious man- 
ner ; and, in case the accused shall be convicted of any crime for which 
by law the punishment would be death, the said justices shall give 
judgment and award such manner"^ of death as the said justices with 

* Under the authority here given to the justices and freeholders '-to award such 
manner of death as they may think tit," horrid spectacles are sometimes exhibited 
to public gaze. An account of one of these — i. e. i/te burning of a negro woman to 
diatli—maj be found in the daily prints of 1820. 



92 JUSTICES AND FREEHOLDERS' COURT. 

the consent of said freeholders shall direct, and which they shall judjre 
•will be most effectual to deter others from offending in the like man- 
ner." James^ Dig. 392-3, By the late revision of the laws of Vb- 
ginia, " The county and corporation courts, consisting of five justices 
thereof at least, shall be courts of Oyer and Terminer for the trial of 
negroes charged with felony, except in the case of free negroes charged 
with felonious homicide or an offence punishable with death. Such 
trial shall be on a charge entered of record stating the offence, but 
WITHOUT JUKY or a presentment, information or indictment. The court, 
on the trial of a slave for felony, shall assign him counsel, and allow 
such counsel a fee not exceeding twenty-five dollars, which shall be 
paid by the owner of the slave. No slave shall be condemned io death, 
nor a free negro to the penitentiary, unless all the justices sitting on 
his trial shall agree in the sentence." Code of Virginia, ch. 212, |^ 2, 
4^5, jy. 787. In Louisiana, except in the parish of New Orleans, 
two justices of the peace and ten owners of slaves, resident in the parish 
where the crime has been committed, must be summoned as a tribunal 
for the trial of slaves accused of capital offences ; but one justice and 
nine such persons constitute a quorum. Statutes of Louisiatia of 1852, 
p. 541. A concurrence of all the members of this tribunal is now 
necessary to authorize a co?iviciion or acquittal. lb. § 92. "In case 
such court shall not convict or acquit the accused of an oSence punish- 
able with death, it shall have the power to decree the infliction of such 
corporal punishment as it may consider deserved by the prisoner." lb. 
This last provision is entirely anomalous, and, as it seems to me, 
highly unjust. Any number less than the whole of which the tribunal 
consists may consider the accused innocent of the charge against him, 
and be therefore in favour of his acquittal; yet, for want of unani- 
mity, [a single juror dissenting is enough,) the prisoner is regarded as 
measurably guilty ; or he may perhaps, from the private knowledge 
of some of the jurors, have committed some other offence, or his general 
character may be bad ; and, as a compromise, he is directed to be cor- 
porally punished and let go. The precedent for this seems to be Acts 
of the Apostles, ch. 5, verse 40. 

In the best-constituted courts, — where skilful counsel aid the 
prisoner in his defence, — where a jury of twelve men impartially 
selected, against whom he has no ground for even the suspicion of an 
unfavourable bias, must concur in the verdict, — and with the judge as 
his legal adviser, (for such the humanity of the common law considers 
him,) — it is not to be doubted that innocent persons have in some 
instances, from the fallibility of human judgment, been condemned 
to death. At times when the passions of men are highly inflamed, 
when the offence charged is loudly reprobated by the public voice, or 
when, in monarchical governments, the strong arm of power is exerted 
to crush an obnoxious individual, even trial by jury, with all its 
guards against oppression, is not seldom an inadequate security to 
the accused. Yet a conviction in such cases can be obtained only 
through the concurrent decisions of tivo distinct tribunals, each com- 
posed of at least twelve men, all of whom act under the most solemn 
responsibility. What chance of justice, then, has an ignorant slave, 
under accusation, for example, of exciting an insurrection, before a 



SLAVE TESTIMONY. 



93 



tribunal chosen by his accuser, suddenly convoked, consisting of but 
five persons, (a majority of whom in South Carolina may convict,) 
without any one to countenance or advise him in the conduct of his 
defence ? 

The court of justices, &c., it would appear, is to continue in session 
for the trial of all slaves against whom complaint has been made. I 
speak in reference to the law of South Carolina and Louisiana, as not 
Deing entirely certain on this point ; for, as respects Virginia, there 
can be no doubt that such is the case, inasmuch as the ordinary 
justices of the county courts make up this extraordinary tribunal for 
the trial of the slave. Those who are to determine upon the guilt 
or innocence of another, accused of a criminal offence, ought, if 
possible, to be uninformed, except through the medium of witnesses 
examined in the particular trial, of the facts alleged against him as 
grounds for conviction. A permanent tribunal in cases of exten- 
sive conspiracies — in insurrections especially — cannot possess this 
essential qualification. One of the many advantages which apper- 
tain to the trial by jury is that each prisoner may, if he so elect, 
have a separate body to hear and decide between him and his ac- 
cusers. 

The foregoing remarks have an especial bearing on the constitution 
of the justices' and freeholders' courts. A law made for the regula- 
tion of these courts in the conduct of the slave's trial is also obnoxious 
to severe reprehension. Holding the slave (as indeed all persons who 
are not white) to be unworthy of belief in a controversy which con- 
cerns even the property of a white man, the lawmakers of most of 
the slave-holding states have nevertheless directed the testimony of 
the slave without oath* or solemn affirmation, to be received for or 
against a fellow- slave arraigned as the perpetrator of any criminal 
offence ; and at the same time, in several of these states, the precious 
boon of freedom is never ocuferred, except for what is termed " meri- 
torious services,'^ an important part of which, is, giving information of 
crimes committed by a slave. The admission of slave testimony upon 
such conditions can hardly result beneficially to the accused. In truth, 
it would seem by the preamble of the law of South Carolina on this 
head, that convictions only where sought for by the legislature who 
enacted it. The whole section reads thus: — ^'And for the preventing 
the coticealment of crimes and offences committed by slaves, and for the 
more effectual discovery and bringing slaves to condign pumishment. f Be 
it enacted, that not only the evidence of all free Indians without oath, 
Init the evidence of any slave without oath, shall be allowed and 
admitted in all causes whatsoever for or against another slave accused 
of any crime or offence whatsoever, the weight of which evidence, being 
seriously considered and compared with all other circumstances at- 

* Louisiana aaid Georgia aro exceptions to this. In the former, on tho trial of 
slaves, free Indians and slaves may be examined on oath, (Statutes of Louisiana, 543, 
^ 103;) and in the latter, on the trial of a slave or free person of colour, any witness 
Hh«ll be sworn who believes in God and a future state of rewards and puuishmerti? 
rrince's Dig. 461; 2 Cohh, 988. 

t In Virginia an act was passed in 1705, a part of tho title of which was, " for t)^ 
speedy and easy prosecution of slaves committing capital crimes." See 'J Tucln- .< 
Blackd',nc, appendix. 59. 



94 PUNISHMENT LESS THAN LIFE OR LIMB. 

tending the case, shall be left to the conscience of justices and free- 
lioldei's." 2 Brev. Dig. 232; James'' Dig. 394, In Viriginia, (1 Rev 
Code, 422 and 431,) in North Carolina and Tennessee, {Haywood- s 
Manual, 522,) in Kentucky, (2 Litt. ^ Sivi. 1150 and 1153-4,) in Mis- 
sissippi, (A'ey. Code, 382,) laws of a similar character may be found, 
though the meaning is left somewhat to implication. 

Hitherto our attention has been chiefly confined to the consideration 
of the trial of the slave when accused of a capital offence. Another 
species of punishment, scarcely less severe, is sometimes imposed. I 
allude to ^'' corporal punishment, not extending to life or limb,'^* as it is 
usually denominated in the Acts of Assembly, but which may be more 
accurately defined as any torture on the body of a slave which can be 
practiced without producing death or dismemberment. Cutting off the ears, 
and the pillory, are in considerable favor with the legislature of Georgia 
and Delaware. Confinement in the stocks and the tread-mill are autho- 
rised in South Carolina. Act of December 19th, 1833, But neither 
the pillory nor cutting off the ears is now allowed. lb. But the 
punishment of universal prevalence and of perpetual occurrence is 
whipping. The infliction of this punishment to the extent of " twenty 
lashes on the bare back, well laid on," is deemed in a great variety of 
cases of insufficient moment to claim the intervention even of a single" 
magistrate. Any white person — a drunken patrol, an absconding 
felon, or a vagebond mendicant — is supposed to possess discretion 
enough to interpret the laws, and to wield the cowskin or cart-whip 
for their infraction ; and, should death ensue by accident while the 
slave is thus receiving moderate correction, the Constitution of Georgia 
kindly denominates the oSence justifiable homicide ! ! 

In Kentucky, offences by slaves which are not capital, are with the 
solitary exception indicated in the last act, punished with whipping 
not exceeding thirty-nine lashes, (2 Litt. ^ Swi. 1160;) and one 
justicef of the peace, without the intervention of a jury, may inquire 
into and decide upon the guilt or innocence of the slave charged with 
the commission of the same. Ibid. 1161. The like authority is 
vested in a justice of the peace by the laws of North Carolina, in cases 
where the punishment cannot exceed the number of forty stripes. 
Haywood's Ma?iual, 526-7 ; Revised Statutes, 581-2. So, in Virginia 
and Mississippi, many of the breaches of the law, for which the 
allotted expiation is whipping, must undergo the examination of a 



* This barbarous punishment is not in terms licensed in Kentucky. Yet, in point 
of fact, I fear it may occur there, and yet challenge the sanction of law. A very high 
crime — '■^advising or consulting to commit murder" — is punishable, if a jury so direct, 
with one hundred lashes ! (2 Litt. <£ Swi. 1161 ; " and when any negro mulatto or Indian 
whatsoever shall be convicted of any offence within the benefit of clergy, judgment 
of death shall not be given against him or her upon such conviction, but he or she 
shall bo burnt in the hand by the jailor in open court, and suffer such other corporal 
punishment as the court shall see fit to inflict." Act of 1798, § 20; 2 M/rehead d 
Brown, 1475. In Georgia and South Carolina, it will be recollected, that terrible as 
this punishment is, in one case at least the slave incurs it, for what in the estimation 
of no rational being can be accounted a crime or any thing resembling it,— i. * tlie 
luavt of sticcess in a trial for freedom before a judicial tribunal! ! See suprcu, p. 123. 

t " No jurisdiction ever did exist which is liable to more abuse than that exercised 
by mau;istrate3 ovcy slaves." fer O'Ncnll, J., in Exparte, Boyl&ston, 2 tHrobhart's 
Kep. i7. 



WHiPPiNa. 05 . 

justice of the peace before punishment can be lawfully inflicted. The 
decision of the justice is, however, final, and the sentence is carried 
into' execution immediately. 

But in most of the slave-holding states* the ordinary tribunal for 
the trial of slaves charged with the perpetration of inferior crimes, 
for Avhich the punishment of death is not awarded, is composed of 
justices and freeholders, or justices only. The number of these varies 
in a small degree in the diflFerent states, being in NiY^\n\-3i five justices, 
[Rev. Code, 4'J8 ;) in Georgia, three [Prince's Dig. 459 ;) in Louisiana, 
one justice and three freeholders, (1 Martiii's Dig. 645-6;) in South 
Carolina, one justice ancbtwo freeholders, [James^ Dig- 393;) in Mis- 
sissippi, one justice and two sZawe-holders, [Miss. Rev. Code, 391;) 
in Louisiana, one-half of the court may convict, although the 
OTHER HALF BE IN FAVOR OF ACQUITTAL, f (1 3Iartin's Dig. 646;) in 
South Carolina, amajority [i. e. two, one of which must be the justice) 
is necessary to a conviction ; and, except in Virginia, where, as it has 
been before stated, unanimity is always required for this purpose, I 
take it to be the proper construction of the law that a majority con- 
stitutes a quorum, and is competent to render judgment either for or 
against the slave. 



* In Kentucky the Justices' and Freeholders' Court is, I believe, unknown. Tl'« 
Constitution of Missouri, by the extract from it given in this chapter, secures to the 
slave trial by jury under every criminal accusation. A similar provision exists m 
that of Alabama, for all offences higher than petit larceny. 

f I. c. the justice and one freeholder may convict. 



96 EMANCIPATION. 



CHAPTER IV. 

ON THE LAWS REGULATING THE EMANCIPATION OF SLAVES. 

Slavery, being hereditary, may, of consequence, be rendered per- 
petual, if such be the will of the master of the slave. From a just 
consideration of the rights of property, it would seem equally plain 
that the master might, at his pleasure, relinquish his dominion over 
the slave. But society, in our slave-holding states, has decreed other- 
wise. Having degraded a rational and immortal being into a chattel, 
— a thing of bargain and sale, — it has been discovered that certain 
incidents result from this degradation which it concerns the welfare 
of the community vigorously to exact and preserve. One of these is, 
that the master's benevolence to his unhappy bondman is not to be 
exercised, by emancipation, xoithoiit the consent of his creditor. This 
is a principle of law which pervades nearly every code in the slave- 
holding states. 

In Virginia and Mississippi, Alabama and Arkansas, an emancipated 
slave may be taken in execution to satisfy any debt contracted by the 
person emancipating him previous to such emancipation. 1 Rev. ( Vir.) 
Code, 434 ; Mississippi Rev. Code, 386 ; Clay's Digest, 542 ; Digest of 
{Arkansas) Statutes, 476. In Kentucky, the act which authorizes 
emancipation and directs the mode by which it may be effected con- 
tains a saving of the rights of creditors, &c. 2 Litt. ^ Swi. 1155, ^ 27, 
(aci 0/1798.) 

By the new Civil Code of Louisiana it is declared: — "Any enfran- 
chisement made in fraud of creditors, or of the portion reserved by 
law to forced heirs, is null and void; and such fraud shall he considered 
as PROVED, whe?i it shall appear that, at the moment of executing the 
enfranchiseme7it, the person granting it had not sufficient pro- 
perty TO PAY his debts." Art. 190. 

But in addition to the obstacle to emancipation which is created by 
the saving in favour of creditors, a very extraordinary one is opposed 
on behalf of the widows of deceased slave-holders. For where a 
widow is entitled by law to one-third of her deceased husband's per- 
sonal estate, unless he shall have left sufficient other personal estate, 
after payment of his debts, to satisfy her claim of one-third, his 
slaves, though declared to be free by his last will, shall nevertheless 
not be free, but shall be held liable for the third to whijh the widow is 
entitled. 1 Vir. Rev. Code, 435 ; 3Iississippi Rev. Code, 386 ; 2 Litt. ^ 
Sivi. {Kentucky) 1246. 

But it is in the mode by which emancipation is to be effected that 
the most formidable difficulties arise. In South Carolina,* Georgia, 

* In South Carolina, before the passing of the act of 1820, here referred to, the law 
stood thus : — " No emancipation of any slave shall be valid, except it be by deed, and 
according to the regulations above described, (which regulations made it necessary 
for the person intending to emancipate a slave to obtain the approbation of a justice 
of the quorum and five freeholders,) and accompanied by the above certificate," (i. e. 
the certificate of the justice and freeholders.) - Brcvanfs Viged, 206. With such 



RESTRAINTS ON EMANCIPATION. 97 

Alabama and Mississippi, it is only hy authority of the legislature spe- 
cially granted that a valid emancipation can be made. It is not enough 
that a penalty is imposed upon the benevolence of a master who may 
permit his slave to work for himself; a slave-owner must continue a 
slave-owner, (unless he dispose of his chattels by sale,) until he can 
induce the legislature to indulge him in the wish to set the captives 
free. Prince's Digest, 456, {act of Dec. 5, 1801 ;) James' Digest, 398, 
{act of 1820;) Toulnwts Digest, C32; Mississippi Rev. Code, 386. 

In Georgia, the attempt to set free a slave by any other mode than 
by an application to the legislature is visited with severe penalties, as 
will appear from the following act: — "If any person or persons shall 
(after the passing of this act, 1801) set free any slave or slaves, in 
any other manner and form than the one prescribed herein, {i. e. by 
special legislative act,) he shall forfeit for every such offence tivo hun- 
dred dollars, to be recovered by action of debt, or indictment, the one 
half to be applied to the use of the county in which the offence may 
have been committed, the other half to the use of the informer ; and 
the said slave or slaves so manumitted and set free shall he still to all 
intents and purposes as much in a state of slavery as before they were 
manumitted and set free by the party or parties so offending." Prince's 
Digest, 457 ; 2 Cobb's Digest, 982. By a subsequent act, the penalty 
for this offence is increased to five hundred dollars. 2 Cobb's Digest, 990. 
Notwithstanding the punishment thus imposed for this new crime which 
the Christian people of the republic of Georgia have seen fit to create 
in the nineteenth century, some refractory heretic, it is presumed, must 
have been found within her borders ; for in the year 1818 the following 
act was added to her code: — "All and every will and testament, deed, 
whether by way of trust or otherwise, contract or agreement or stipu- 
lation, or other instrument in wi^iting or by parole, made and executed 
for the purpose of effecting or endeavouring to effect the manumission 
of any slave or slaves, either directly by conferring or attempting to 
confer freedom on such slave or slaves, indirectly or virtually by allow- 
ing and securing or attempting to allow and secure to such slave or 
slaves the right or privilege of working for his, her or themselves, free 
from the control of the master or owner of such slave or slaves, or 
of enjoying the profits of his, her or their labour or skill, shall be and 
the same are hereby declared to be utterly null and void ; and the 
person or persons so making, &c. any such deed, &c. &c., and all and 
every person or persons concerned in giving or attempting to give effect 
thereto, whether by accepting the trust thereby created or attempted 
to be created, or in any other way or manner whatsoever, shall be 
severally liable to a penalty not exceeding one thousand dollars, to be 
recovered, &c. &c. ; and each and every slave or slaves in whose behalf 
such will or testament, &g. &c. shall have been made shall be liable to 
be arrested by warrant under the hand and seal of any magistrate of 
this state, and, being thereof convicted, &c., shall be liable to be sold 



strictness -was this law construed, that whore a testator made a bequest of slaves to ?^ 
trustee, with direclums to liberate them, it was held by the Court of Chancery to be a 
void bequest, and that therefore the slaves might be retained in perpetual servitude. 
See the case of Byrnuvi vs. Bostwick ; 4 Dessaussure's Chancer^/ Reports, 2C6. 

9 



98 IN TEKNESSEE, MISSISSIPPI, AND KENTUCKY. 

as a slave or slaves, by public outcry, and the proceeds of such sales 
shall be appropriated, &c. &c." Princess Digest, 466; 2 Cobb, 991. 

Formei'iy, \n North Carolina, a slave could not be manumitted except 
for meritorious services, to be adjudged of and allowed by the county 
court, [Haywood's 3Ianual, 525;) but by the Rev. Statutes of 1836-7, 
the court on the petition in writing of the master, and his entering 
into a bond with two sufficient secvirities, in the sum of one thousand 
doUars, conditioned that the slave so to be emancipated shall honestly 
and correctly demean himself while he shall remain within the state, 
and that he will, within ninety days after granting the prayer of the 
petitioner to emancipate liim, leave the state and never afterwards come 
ivithin the same, may permit euch emancipation. The rights of creditors 
are expressly saved. 

The same end may be attained by a compliance essentially with the 
same terms on the part of executors of a last will, in which the tes- 
tator has authorized his executors to emancipate a slave. Rev. Sta- 
tutes, 585. 

The law of Tennessee on this subject requires the presentation of a 
petition to the county court, "settiug forth the intention and motives 
for such emancipation;" and these must be consistent, in the opinion 
of the court, with the interest and policy of the state to authorize its 
reception. The emancipator must give a bond with sufficient security 
conditioned that the emancipated slave shall forthwith remove from 
the state. Laws of Tennessee, 277-9 ; [act of 1801, ch. 27, and of 1831, 
ch. 102.) 

Mississippi has combined in one act all the obstacles to emancipa- 
tion which are to be met with in the laws of the other slave-holding 
states. Thus, the -emancipation must be by an instrument in writing, 
a last will or deed, &c. under seal, attested by at least tivo credible wit- 
nesses, or acknowledged in the court of the county or corporation where 
the emancipator resides ; and proof satisfactory to the General Assembly 
must be adduced that the slave has done some meritorious act for the benefit 
of his master, or rendered some distinguished service to the state; all which 
circumstances are hnt prerequisites, and are of no efficacy until a special 
act of Assembly sanctions the emancipation ; — to which may be added, 
as has been already stated, a saving of the rights of creditors and the 
protection of the tvidoiv's third. Ilississij^pi Rev. Code, 385-6, [act of 
June 18, 1822.) 

In Kentucky, IMissouri, Virginia, Maryland, and Ai'kansas, greater 
facility is afforded to emancipation. The first- named of these states 
enacted in 1798 the following law, which continues still in force: — 
"It shall be lawful for any person, by his or her last will and testa- 
ment, or by any other instrument in Avriting, under his or her hand 
and seal, attested and proved in the county court by two witnesses or 
acknowledged by the party in the court of the county where he or she 
resides, to emancipate or set free his or her slave or slaves, who shall 
thereupon be entirely and fully discharged from the performance of 
any contract entered into during their servitude, and enjoy their full 
freedom as if they had been born free. And the said court shall 
have full power to demand bond and sufficient security of the emanci- 
pator, his or her executors, &,c. for the maintenance of any slave or 



IN VIRGINIA AND MARYLAND. 99 

s'aves that may be aged or infirm either of body or mind, to prevent 
him, her or them becoming chargeable to the county ; and every slave 
so emancipated shall have a certificate of his freedom from the clerk 
of such court on parchment, wit-h the county seal affixed thereto, &c., 
saving, however, the rights of creditors, &c. &c." 2 Litt. ^- Stoi. 1155. 
And in 1800, in consequence of a humane law particularly noticed in 
a previous page* of this sketch, by which slaves were constituted real 
estate, and therefore, so far as concerns the law of descents, not subject 
to disposition by the will of a viinor or by a deed executed by him, an 
act was passed to remove this impediment, declaring "That any per- 
son of the age of eighteen years, being possessed of or having a right 
to any slave or slaves, may, by his last will and testament, or by an 
instrument in writing, emancipate such slave or slaves." Ibid. 1247. 

The law of Missouri on this subject bears so close an analogy to the 
law of Kentucky of 1798 as not to call for a particular recital. See 
2 Missouri Laws, 744. 

In Virginia the law of emancipation has undergone many changes 
since the year 1699, when the first legislative interposition happened. 
By an act of that year the emancipation of any negro or mulatto 
slave was rendered nugatory unless the emancipator should send his 
freedman out of the country within six months from the time of his 
emancipation ; and, in default of so doing, the church-wardens were 
authorized to apprehend and sell him. 3 Henning's Statutes, 87. 
Another act was passed in 1723, forbidding emancipation, except for 
meritorious services, to be adjudged of by the governor and council. 
4 Ibid. 132. In 1782 this restraint on the power of the master to 
emancipate his slave was removed, and since that time the master 
may emancipate by his last will or deed. By the Code of Virginia of 
1848-9, "Any person may emancipate any of his slaves by last will in 
writing or by deed recorded in the court of his county or corporation:" 
p. 458. The usual saving of the rights of creditors is retained; but 
some modification was made in the harsh provision noticed on page 7 
of this sketch, by which emancipated slaves were compelled to abandon 
the state after twelve months from the time at which they became 
free. Ibid. 466. But, by the last Constitution of the state, (of 1851-2,) 
this inhuman policy has been restored, as is shown by the following 
provision: — " Slaves hereafter emancipated shall fokfeit their freedom 
by remaining in the commonwealth more than twelve months after 
they become actually free, and shall be reduced to slavery under 
such regulations as may be prescribed by law." 

The existing law of Maryland on this subject takes its date from 
the act of 1796, ch. 67, — the 29th section of which is in these words : — 
" Where any person or persons possessed of any slave or slaves within 
this state, who are or shall be of healthy co?istitutions and sovmd in 
mind and body, capable by labour to procure to him or them sufficient 
food and raiment, with the requisite necessaries of life, and not ex- 
ceeding forty-five years of age, andf such person or persons possess- 
ing such slave or slaves as aforesaid may by writing, under his, her 

* See supra, note f, p. 11. 

t The word and, though in the law, should be stricken out. 



100 . IN MAIIYLAND. 

or their hand and seal, evidenced by two good and sufficient witnessca 
at least, grant to such slave or slaves his, her or their freedom ; and 
any deed or writing whereby freedom shall be given or granted to any 
such slave, which shall be intended to take place in future,* shall be 
good to all intents, constructions and purposes whatsoever, from the 
time that such freedom or manumission is intended to commence by 
the said deed or writing, so that such deed and writing be not in 
prejudice of creditors, and that such slave, at the time such freedom 
or manumission shall take place or commence, be not above the age 
aforesaid, and be able to work and gain a sufficient livelihood and 
maintenance, according to the true intent and meaning of this act, 
which instrument of writing shall be acknowledged before one justice 
of the peace of the county wherein the person or persons so granting 
such freedom shall reside, which justice shall endorse on the back 
of such instrument the time of the acknowledgment, and the party 
making the same, which he or they, or the parties concerned, shall 
cause to be entered among the records of the county court where the 
person or persons granting such freedom shall reside, within six 
months after the date of such instrument of writing ; and the clerk 
of the respective county courts within the state shall, immediately 
upon the receipt of such instrument, endorse the time of his receiving 
the same, and shall well and trvily enroll such deed or instrument 
in a good and sufficient book, in folio, to be regularly alphabeted in 
the names of both parties, and to remain in the custody of the said 
clerk, for the time being, among the records of the respective county 
courts ; and that the said clerk shall on the back of every such in- 
strument, in a full, legible hand, make an endorsement of such en- 
rollment, and also of the folio of the book in which the same shall be 
enrolled, and to such endorsement set his hand, the person or per- 
sons requiring such entry paying the usual and legal fees for the 
same." Emancipation is also authorized by the same act, to be made 
by last xcill and testament, subject to the same restrictions which arc 



* In a case of this kind, where a future point of time is fixed at vliich the slave is 
to be free, it is plain ho ou<?ht to be regarded not as an absolute slave, but merely as 
bound to a servitude ./wr years. According to the maxim that the condition of the 
issue depends upon the condition of the viother, it would, therefore, follow that the 
issue born of female slaves so circumstanced, during tlie period of their mother^s servi- 
tude/or years, should not be considered slaves for life. Whether such issue should 
be held as slaves for life, or should bo regarded as/jre, seems not to have been well 
settled by the courts.' To remove all doubt on this subject, as on some other nearly 
similar cases, it was enacted, " That from and after the fiist day of February, 1810, 
if any negro or mulatto female slave, by testament, or last will, or deed of manumis* 
sion, shall be declared to be free after any given period of service, or at any stipulated 
age, or upon the performance of any condition, or on the event of any contingency, 
it shall be lawful lor the person making such last will, Ac. &c. to fix and determine 
in the same the state and condition of the issue that may be Lorn of such negro or 
mnlatto female slave during their period of service." So far the act is judicious; but 
in the next section it is provided that, in the event that the testator, &c. shall not 
determine the condition of the issue so born, thev shall be esteemed slaves for life! ! 
Maryland Laws, {act of Nov. 1809, ch. 171.) In Virf/inif. by the Code of 1849, the in- 
crease of any female emancipated by deed or will tin rculfcr made, born between the 
death of the testator or the record of the deed and the lime when her right to the 
enjoyment of her freedom arrives, shall also he free at that time, unless the deed or iviU 
othcnvise provides, pp. 458-59. 



IN LOUISIANA. 101 

imposed in case the emancipation is effected by deed, &c. agreeably 
to the above section. Ibid. ^ 13.* 

The state of Louisiana directs emancipation to be made in the man- 
ner set forth in the following articles of her new Civil Code: — "A mas- 
ter may manumit his slave in this state, either by an act inter vivos, or 
by a disposition made in prospect of death, provided such manumission 
be made with the foi-ms and under the conditions prescribed by law ; 
but an enfranchisement, when made by a last will, must be express 
and formal, and shall not be implied by any other circumstances of 
the testament, such as a legacy, an institution of heir, testamentary 
executorship, or other dispositions of this nature, which in such case 
shall be considered as if they had not been made." Art. 184. The 
manner to be observed by the emancipator (when the emancipation is 
not by a last will) is thus delineated: — "The master who wishes to 
emancipate his slave is bound to make a declaration of his intention to 
the judge of the parish where he resides; the judge must order notice 
of it to be published during forty days by advertisement posted at the 
door of the court-house; and if, at the expiration of this delay, no 
opposition be made, he shall authorize the master to pass the act of 
emancipation." Art. 187. The general powers thus conferred are 
subject nevertheless to these limitations: — "No one can emancipate 
his slave unless the slave has attained the age of thirty years,-\ and has 
behaved well at least for four years preceding his emancipation," [art. 
185,) except "a slave lolio has saved the life of his master, his master's 
wife or one of his children ;'' for such a one ^'■may be emancipated at any 
age.'' Art. 186. 

It was a part of the law of this state, adopted in 1806, that a slave, 
as a reward for discovering aplot, rebellion, rising in arms, or mutinous 
asseinbly, or any other crime tending to subvert or endanger the public 
tranquillity or safety, might obtain his liberty, besides such further re- 
compense as the legislature might think adequate to the service ren- 
dered. This continues to be the law. Revised Statutes, 546, 

Since 1825, when the Civil Code of Louisiana, prepared by Mr. Liv- 
ingston, came into effect, several changes and additions have been 



* In this state, a slave may be manumitted by implication contained in a last will 
and testament, — as by a devise of real or a bequest of personal property to a slave by 
his owner. See Hall vs. Mullen, 5 Harris d- Jolinson^s Reports, 190. In North and 
South Carolina, it will be recollected, such a devise or bequest, so far from entitling 
the slave to freedom, is held to be utterly void. The decision in Maryland is, however, 
in conformity with the law of villanage, as well as to the civil law. See Coke, Lilt, 
title Villanage, § 305. 

f The bearing of this law has given rise to a private act of the Assembly of Loui- 
siana, which, to one accustomed to consider freedom as among the imprescriptible 
rights of rational creatures, may seem inexplicable. The act alluded to is entitled 
" An act to authorize the manumission of certain slaves," and contains the following 
recital and enactment : — " "Whereas Maria Martha, a free woman of colour, of the 
parish of West Baton Rouge, has presented a petition to the legislature, praying to he 
authorized to manumit two of her children, one named Terence, of twerity-six years of 
age, and the other Valery, of twenty four years of age, both being her own property, 
and begotten whilst the said Maria Martha was in the bonds of slavery ; and whereas, 
in conformity of the existing laws of this state, slaves cannot he manumitted until 
they have attained a certain age, therefore, be it enacted, &c. that the said Maria 
Martha, Ac. be and she is hereby authorized to manumit her two children, &c. &e." 
See Acts of Assembly of Louisiana in the year 1823, p. 3G. 



102 CRUEL ANTI-MANUMISSION CASES. 

made on tlus subject. The chief of these is a mode by which slaves 
under thirty years of age may bo emaucipated by their masters. The 
principle is much the same as the law of Tennessee requiring a petition 
from the master "in which he shall explain the motives which induce 
him to wish the emancipation of the slave." The tribunal to act upon 
this petition consists, in New Orleans, of the recorder and council of 
the municipality, and in the other portions of the state of ^police jury, 
composed of a president and eight or iivelve members, who hold their 
offices for two years and are elected by ballot. Three-fourths of either 
of these tribunals, in addition to the respective presiding officer, deter- 
mine upon the merits of the claim set forth in the petition. If they 
allow the slave to be emancipated, they have the power to permit 
him to remain in the state, or to depart within one month and not 
return. In the latter case, the master must give a bond, with se- 
curity, for compliance with the decision of the tribunal. Revised 
Statutes, 548-9. 

The resti-aints on the power of the master to emancipate his slave 
produce occasionally effects which shock the native sensibility and 
sense of justice of every one. Within the last few years, a case of 
this description occurred in North Carolina. A free coloured man was 
so industrious and thrifty that he was enabled to purchase, and did 
purchase, his wife, who was a slave, and the children which had been 
up to that time born to them. They had several other children subse- 
quently born. By the law of the state the wife and all these children 
were iiis slaves, and not, as he himself was, free. For a considerable 
number of years he continued prosperous, and was induced to extend 
his business; but, in the end, he was involved in debt beyond his ability 
to pay. His creditors obtained judgments against him, and under 
these his ivife and children were sold into perpetual slavery ! Whether 
the family was actually separated in this way I do not know. The law 
would permit it to be, and the probability is that the different mem- 
bers were at once torn from each other. 

There is another case, which, if possible, is a greater outrage on 
humanity. This is evidenced in the most indisputable way. It is 
reported in 2 Iloicard's Mississippi Reports, 840, Minds vs. Brazealle. 

A citizen of Mississippi, named Elisha Brazealle, held a coloured 
woman as a slave. She had a son called John Monroe Brazealle, of 
whom her master, Elisha Brazealle, was the acknowledged father. 

Elisha Brazealle left Mississippi and took with him to the state of 
Ohio this negro woman and her son, for the purpose of emancipating 
them, and with the intention of then bringing them back to Missis- 
sippi. He accordingly executed the deed of emancipation while in 
Ohio, and returned with the woman and her son to his residence in 
Jefferson county, Mississippi, where he continued to reside until his 
death. By his will, executed after the deed, he recited the fact that 
such a deed had been executed, and declared his intention to ratify it, 
and devised his property to the said John Munroe Brazealle, acknow- 
ledging HIM TO BE HIS SON. 

His executors proved the will and took charge of the estate, and 
continued to hold it and receive the profits. 

Persons claiming to be the heirs-Qt-l^vr of Elisha Brazealle, the de- 



CRUEL ANTI-MANUMISSION CASE. lUO 

ceased, filed a bill in chancery, claiming all the estate which had 
belonged to hini in his lifetime, "on the gronnd that the deed of eman- 
cipation was void, as being contrary to the laws and policy of Missis- 
sippi, and that, being so, the said John Munroe Brazealle was still a 
slave, and incapable of taking by devise or holding property." 

The decision of the inferior court in which the bill of chancery was 
filed was in favour of the heirs of Elisha Brazealle. An appeal from 
this decision was taken to the highest court in the state, and, on hear- 
ing there, the decision of the inferior court ivas affirmed. 

The main question in the case was, whether the deed of emancipation 
executed in Ohio was valid. And it was held not to be so. 

Chief-Justice Starker/, by whom the opinion of the court was given, 
said, "Upon principles of natural comity, contracts are to be con- 
strued according to the laws of the country or state where they are 
MADE, and the respective rights and duties of parties are to be defined 
and enforced accordingly. As these laws derive their force entirely 
from comity, they are not to be adopted to the exclusion of state laws 
by which the great and fundamental policy of the state is fixed and 
regulated." 

He then argues that it was the intention of Elisha Brazealle to evade 
the laws of IMississippi, by going to Ohio and there executing the deed 
of manumission, and says this attempt to evade the laws of that state 
rendered the deed fraudulent and inoperative ; and he concludes in 
these words: — "As we think the validity'- of the deed must depend 
upon the laws of this state, it becomes unnecessarj^ to inquire whether 
it could have any force by the laws of Ohio. If it were valid there, it 
would have no force hei"e. The consequence is, that the negroes John 
Munroe and his mother are still slaves, and a part of the 
estate of Elisha Brazealle. 

"John Munroe, being a slave, Cfyinot talce property as devisee; and 
I apprehend it is equally clear that it cannot be held in trust for him. 
4 Dessaussure, 266. 

"It follows, therefore, that the heirs are entitled to the property." 

Of the injustice and cruelty of this decision I shall say nothing. But 
was it consonant with strict laiv ? 

Supposing, as is asserted, that it was the intention of Elisha Bra- 
zealle to evade the law of Mississippi in regard to the emancipation of 
slaves, by taking the slaves with him to Ohio and there executing the 
deed of emancipation : could he, if alive, set up this his own fraudu- 
lent intention, for his own benefit, on a trial of freedom brought hj 
the motlier and son ? Certainly not; for it is a principle of the com- 
mon law, universally received, that a party cannot thvis avail himself 
of his oxen tvrony ; that the deed, though fraudulent 'as to creditors, is 
yood between the parties. And the same rule holds in respect to 
those who claim through and under him. His heirs, as well as him- 
self, were estopped from denying the validity of the deed. 

What then was the proper conclusion on the facts of this case ? 
The alleged fraud, according to Chief-Justice StarJccy, consisted in an 
effort to contravene the laxv and policy of Mississippi which forbade 
free negroes to continue in the state, &,c. This policy could have 
been satisfied by enforcing this law and compelling both the mother 



104 RESTRAINTS ON SPEECH AND THE PRESS. 

and tlie son to remove from the state. But, being free, tlie devise 
of the property to the son was good. 

While treating on the subject of emancipation, with reference to 
the laws of Louisiana, it is due to the framers of the new Civil 
Code, as well as to the legislature and people by whom it has been 
adopted, to notice distinctly several provisions in this code, which 
evidence greater benevolence to the slave than is usually exhibited 
in slave-holding countries. Thus, to meet a case which may fre- 
quently occur, it is an article of the code that " the child born of 
a woman after she has acquired the right of being free at a future 
time follows the condition of the mother, and becomes free at the 
TIME FIXED for her enfranchisement, even though the mother should 
die before that time." Art. 196. Again, " The slave who has acquired 
the right of being free at a future time is, from that time, (i.e. the 
period when the right is acquired,) capable of receiving by testa- 
ment or donation. Property given or devised to him must be pre- 
served for him, in order to be delivered to him in kind when his 
emancipation shall take place. In the mean time it must be ad- 
ministered by a curator." Art. 193. 



CHAPTER V. 

ENCROACHMENTS INDUCED BY SLAVERY ON FREEDOM OF SrEECII AND 
OF THE PRESS. - 

Besides the laws which aifect slaves only, the statute-books of the 
slave-holding states exhibit degrading and despotic enactments grow- 
ing out of the institution of slavery, which bear directly upon the 
free white population. 

Those to which I particularly allude are restraints upon freedom 
of speech and of the press. 

I pass over all statutable efforts to prevent the circulation of publi- 
cations designed to excite insurrection among the slaves. I regard 
the distribution of all such publications as utterly indefensible. 

In the Revised Statutes of Louisiana are these enactments : — " If any 
white person shall be convicted of being the author, printer orpublishei 
of any written or printed paper or papers within this state, or shall 
use any language with the intent to disturb the peace or security 
of the same, in relation to the slaves of the people of this state, 
or TO DiBiiNisH THAT RESPECT ivhich ts Commanded to free people of 
colour for the whites by law, or to destroy that line of distinction ivhich 
the law has established between the several classes of this community, 
such person shall be adjudged guilty of high misdemeanour, and shall 
be fined in a sum not less than three hundred dollars nor exceeding 
one thousand dollars, and, moreover, imprisoned for a term not lesa 
than six months nor exceeding three years." Statutes of Louisiana, 
(1852,) p. 554. 



RESTEAINTS ON SPEECH AND THE PRESS. 105 

"Whosoever shall -write, print, publish or distribute any thing 
having a tendency to produc-s discontent among the /ree coloured popu- 
lation of the state, shall, on conviction thereof before any court of 
competent jurisdiction, be sentenced to imprisonment at hard la- 
bour FOR life, or suffer death, at the discretion of the court." 
Ibid. 208. 

"Whosoever shall make use of language in any public discourse 
from the bar, the bench, the stage, the pulpit, or in any place what- 
soever, or whoever shall make use of language in private discourses 
or conversations, or shall make use of signs or actions, having a ten- 
dency to produce discontent among the free coloured population of this 
state, or to excite insubordination among the slaves, or whosoever 
shall knowingly be instrumental in bringing into this state any paper, 
pamphlet or book having such tendency as aforesaid, shall, on convic- 
tion thereof before any court of competent jurisdiction, suffer imprison- 
ment at hard labour not less than three years nor more than twenty-one 
years, or death, at the discretion of the court." Ibid. 

Passing over the heartless despotism which only could have dictated 
such enactments, — the intolerance, — the want of all charity for human 
infirmity, — the utter disregard of the plainest rights of man, — were 
there ever crimes of so loose and indeterminate a character? — "/o 
diminish the respect which is commanded to free people of colour for the 
whites by law"""? or " to destroy that line of distinction which the law has 
established betiveen the several classes of this community^' ? or '■^writing 
any thing or using in discourse language or signs or actions having a ten- 
dency to produce discontent among the free coloured population ".^ 

In what code of laws can the counterpart of these, in ferocity of 
punishments, be found ? In none certainly on which the light of 
Christianity has dawned. Imprisonment at hard labour for life, or 
the infliction of death itself, for xcriting any thing having a tendency 
to produce discotitent in the breast of a nominally-free but greatly- 
oppressed people ; or ^Hmprisonment at hard labour for tv^enty-one 
years, or death, for using language or signs or actions having such 
tendency." 

When human life is the forfeiture of such offences, it is quite a 
descent to speak of "a fine of one thousand dollars and imprisonmc7ii 
of three years'^ for printing a paper or uttering any language with the 
"zn^ew^ to DIMINISH the respect ivhich is commanded to free people of 
colour for the whites by laiv," or " to destroy that line of distinction 
which the law has established betiveen the several classes of the 
community." 

Which of these crimes is of the deepest dye — that ^'tvhich has a ten- 
dency to produce discontent,''^ or " to diminish respect," &c., or " ^o destroy 
the line of distinction between the several classes of the community" — would 
require a very minute knowledge of the state of society in Louisiana 
to determine. 

The first of these laws requires a criminal intent, which is certainly 
an aggravation of the offence ; and yet the punishment is less severe 
than that which is imposed for the perpetration of the other ofl'ences 
mentioned, which are nevertheless crimes in the language of the sta- 
tutes, although no criminal intent existed. They may be committed 



lOG RESTRAINTS ON SPEECH AND THE PRESS. 

througli sheer ignorance or inadvertence ; but tliese considerations 
are no palliation of the imputed guilt. 

It is quite obvious that particular parts, if not the whole, of the 
Declaration of Independence are proscribed by these statutes. What 
words can be named more likely '■'■ to produce disconie?it," or ^'diminish 
the respect,'' &c., or *' destroy the Ime of distinction between the several classes 
of the commmiity," than — ''all men are born free and equal," 
which this imperishable document declares is a self-evident truth? It 
says too that "Z//e, liberty, and the pursuit of happiness, are inalien- 
able rights of man;" and it denominates this declaration also a self- 
evident truth. 

But to utter these sentiments or any thing equivalent, even in private 
conversation, within the territorial boundaries of Louisiana, is punish- 
able with *■'■ imprisonment at hard labour not less than three years," and 
it may be with ticeniy-one years or death, at the discretion of the 
court; while for the more deliberate cvimmaliij of printing or publisli- 
ing the same, nothing will expiate but such impirisonment fob life, or 
the infliction of death ! 

The clergy and the bar will find it very difficult to discharge their 
duties conscientiously and fearlessly with these terrific penalties before 
their eyes. IIow large a part of the Holy Scriptures must be thus 
placed under the ban will be obvious upon a little reflection. And 
should any one be indicted under these statutes, how could his counsel 
sustain the proper character of an advocate, if he dare not repeat 
for the purpose of explanation or palliation the language which is 
charged against his client as a crime? But it is unnecessary to dilate 
on such a subject. It speaks its own condemnation. 

In Alabama there are kindred laws, but less exceptionable, because 
in these a guilty intent is requisite to constitute crime. As, however, 
intent is always a question for a jury, this tribunal, composed of the 
same people who make the laws, will have no difficulty in imagining 
an intent wherever a distasteful publication is charged upon a prisoner. 
See Clay's Digest, 412. 

The Code of Virginia of 1849 contains the following: — "If a free 
person by speaking or writing maintain that owners have not right of 
property in their slaves, he shall be confined in jail not more than one 
year and fined not exceeding five hundred dollars. He may be arrested 
and carried before a justice by any white person." Ch. 198, 1 22, 745 
-4G. Under an act a little earlier in date to this, expressed in nearly 
the same language, a Blethodist clergyman was indicted in 1849, tried, 
and convicted. According to the report of the case to be found in 7 
Grattan's Reports, G02, "it was charged in the indictment that the 
defendant, on the 26th of March, 1849, preached a sermon from the 
text in the New Testament, 'Fe arc the salt of the earth,' or, '■Ye are the 
light of the icorld.' [The witnesses dififerecl as to which of these was 
the real text.] Towards the conclusion of his discourse the defend- 
ant cited a passage of Scripture which related to the overthrow of the 
tables of the monej'^-changers in the temple, and said, ' Those persons 
[alluding to the money-changers] were pronounced, by our Saviour, 
thieves aiid robbers, and there are thieves and robbers in the church at 
tills day. If I go to my neighbour's crib and steal his corn, you would 



RESTRAINTS ON SPEECH AND THE TRESS. 107 

call me a thief f but that it was worse to take a human being and keep him 
all his life, and gioe him nothing for his labour except once in a while a 
whipping or a feio stripes.'" 

The jury, as before stated, found the defendant guiliy upon this in- 
dictment, and, according to the practice in that state, assessed as a 
fine upon him forty-nine dollars sixty-two-and-a-half cents. 

The record was taken to the Supreme Court, when the judgment 
whicii had been entered below was reversed, the court being of opinion 
that the language imputed to the defendant did not amount to a denial 
in any one of a right of property in a slave. 

I make no remark on this proceeding except this : — that it furnishes 
another example of the injustice of charging any one criwinall;/ upon 
the memory of witnesses of words spoken by him. Here the witnesses 
were unable to agree as to which of two texts was the one announced 
from the pulpit. Certainly as to the criminal charge this disagreement 
was unimportant. But what confidence could be placed in their 
recollection as to what was spoken in the less noticeable part of the 
discourse ? 

The Constitution of Virginia of 1880, which was in force at the date 
of the statute above cited, denies to the General Assembly power to 

pass "ANY LAW ABRIDGING THE FREEDOM OF SPEECH OR OF THE PRESS." 

Art. 3, § 11. The Constitution of 1776 contained a similar restriction, 
and it has been preserved in the last Constitution of 1851. lam unable 
to reconcile the statute with this constitutional provision. They are, 
it seems to me, in direct conflict. 

AVith respect to Louisiana and Alabama, despotic and tyrannical as 
their laws are, the terms of their Constitutions on the freedom of speech 
and the press, although very broad in the declarative part, are so qua- 
lified by the proviso which follows that in effect these invaluable rights 
can scarcely be said to be protected at all. The language is the same 
in each. It is this: — "Every citizen may freely speak, write and 
publish his sentiments on all subjects, being resjjonsible for the abuse 
of that liberty." Const, of Louisiana, art. 110; Const, of Alabama, 
o-rM, |8. 

This qualification, which is not confined to these states, but is found 
in several others, (and among those is Pennsylvania,) leaves th.Q freedom 
both of speech and of the press at the mercy of the legislature. I do not 
mean to be understood that there may not be a conceivable encroach- 
ment by the legislature which the courts would be bound to declare 
unconstitutional. But a tyrannical legislature may for all practical 
purposes utterly destroy these cherished rights, as is done by the sta- 
tutes of Louisiana and Alabama. It is a curious fact that the first 
amendment to the Constitution of the United States which was proposed 
and adopted forbids Congress to pass any law ^'abridging the freedom 
of speech or of the press" at all. And yet the very states, or rather 
many of them, have incorporated in their own Constitutions a similar 
qualification to that which exists in Louisiana and Alabama. The 
distinction between such states as Pennsylvania and Louisiana and 
Alaham,a is, that in Pennsylvania the legislature has regarded the Con- 
stitution as a shield, while Louisiana and Alabama have used it as a 
sword. 



108 RESTRAINTS ON SPEECH AND THE PRESS. 

Before leaving this subject, some notice ought, perhaps, to be taken 
of the legislation of the territorial government of Kansas, so far as it 
falls within the meaning of the present chapter. 

The government of this territory is but pupilary, — subject to the 
•will of the Federal Government wholly and absolutely. The Constitu- 
tion of the United States must control all its action. Now, as has just 
been stated, the Constitution of the United States forbids, in the most 
unqualified manner, any abridgment of the freedom of speech 

AND OF THE PRESS. 

Without entering into the question whether slavery can be sustained 
at all by Kaiisas during her pupilage, it is too plain to admit of con- 
troversy that the territorial government can pass no laws of the kind 
which it has undertaken to do in the 11th and 12th sections of an act 
entitled ^^An act to punish offences against slave property.'" These sec- 
tions read thus: — 

^^ Section 11. — If any person print, write, introduce into, publish or 
circulate, or cause to be brought into, printed, written, published or 
circulated, or shall knowingly aid or assist in bringing into, printing, 
publishing or circulating within this tei-ritory any book, paper, pamph- 
let, magazine, handbill or circular containing any statements, argu- 
ments, opinions, sentiment, doctrine, advice or inuendo calculated to 
produce a disorderly, dangerous or rebellious disaffection among the 
slaves in this territory, or to induce such slaves to escape from the 
service of their masters or to resist their authority, he shall be guilty 
of felony, and be punished by imprisonment and hard labour for a 
term not less than five years. 

'■'Section 12. — If any free person, by speaking or by writing, assert 
or maintain that persons have not the right to hold slaves in this terri- 
tory, or shall introduce into this territory, print, publish, write, circu- 
late, or cause to be introduced into this territory, written, printed, 
published or circulated in this territory, any book, paper, magazine, 
pamphlet or circular containing any denial of the right of persons to 
hold slaves in this territory, such person shall be deemed guilty of 
felony and be punished by imprisonment at hard labour for a term of 
not less than two years." 

Oi ih-Q paternity of these sections no one will doubt who peruses the 
extracts which I have given in this chapter from the statutes of Loui- 
siana ajid Virginia. That the courts of Virgiyiia must and will pro- 
nounce the act of Assembly in that state tmconstitutional so soon as the 
question shall be forced upon them I entertain no doubt. The lan- 
guage of the Constitution of Virginia and of the Constitution of the 
United States in regard to the freedom of speech and of the press is the 
same, and no language could be selected more plain, forcible and posi- 
tive. There is no room for subterfuge ; nothing is left to construe 
tion : it has but one meaning:. 



APPENDIX, 



OF THE LAWS OF THE UNITED STATES RELATING TO 
SLAVERY. 



CHAPTER I. 

ON THE APPORTIONMENT OF BEPUESENTATIVES id CONGRESS, ETC. 

The introduction of negro slavery into this country was, as lias 
been already stated, a part of the colonial policy of Great Britain. It 
has been also stated that long before and at the era of our indepen- 
dence it existed to some extent in each of the original states oi the 
Union. It was an institution the evils of which, at this latter period 
in particular, were severely felt, while its incompatibility with the 
principles of a republican government was too palpable not to be gene- 
rally perceived and acknowledged. Prevailing, however, as was the 
case, in some states much more than in others, it was the dictate of 
sound policy, on the part of the first Congress, to leave the whole 
subiect unaffected by any national measure. Accordingly, when th 
original draught of the Declaration of Independence was presented to 
that body, a portion of this instrument, which reprobated m strong 
language the conduct of the mother-country m relation to the slave 
population, was entirely stricken out. And afterwards, m lu8 when 
the articles of confederation between the several states were adopted, 
the topic of slavery was again carefully excluded. But when the 
perils of the revolutionary conflict were over, and peace mvit^ed the 
exercise of patriotism, philanthropy and religion, in the formation ot 
a more stable and more perfect system of government by which were 
to be reconciled the jarring elements incident to a wide-spread coun- 
try, peopled by inhabitants whose education, whose interests, and 
whose religious creeds, were different, the consideration of slavery 
was forced upon the convention. Politically speaking, a majority of the 
states would have been benefited had the same caution been observed 
with respect to the Constitution y^hich had been pursued in reference 
to the declaration of Independence and the Articles of Confederation. 
-The apportionment of representatives among the several states was, 
however, a subject of such prominence as to claim the earliest atten- 
iZ of the convention. In an evil hour the important advantage was 
<;oncQded to the slave-holding states of including within the enuraera- 
+ion of inhabitants by which the ratio of representation was to be as- 
certained, th^-ee-fifths of those who tvere held in slaveri/ 

For the surrender of right involved in this anomalous arrangement 
the larffc non-^v^^-hoUJaSg states, such as New York and Pennsyl- 



110 FUGITIVE SLAVE LAWS. 

vania, obtained not even a nominal equivalent. The provision relative 
to direct taxes, when viewed in all its bearings, is beneficial to the slave- 
holding rather than to the won-slave-holding states."^ It will not be 
pretended that the equal representation of the states in the Senate 
confers undue power upon the large 7ion-slave-holding states. On the 
contrary, this is known to have been the result of a compromise in 
which the interest of the small states only was consulted. It was deemed 
necessary in order to preserve the federative system ; and believing, 
as I do, that for this purpose it was indispensable, gi'eat as was the 
sacrifice on the part of the large states, nevertheless, it ought, I con- 
cede, to have been made. 

This latter principle of equal representation of the several states in 
the Senate induced the consent of the small non-slave-holdiiig states to 
the monstrous anomaly in a republican government of the legislative 
representation of slaves by their masters. No argument can be ad- 
vanced to give plausibility to this article of the Constitution. It has 
been already the cause of incalculable detriment to the nation. It has 
secured the recognition of slavery in Missouri ; it may operate the like 
effect in other territories equally enriched by tliu bounty of heaven, — 
the like fit abodes of the children of freemen. 



CHAPTER II. 

OF THE ACTS OP CONGRESS RELATIVE TO FUGITIVE SLAVES. 

The Federal Government being composed of thirteen distinct and in- 
dependent sovereignties, in four of which, before the Constitution of 
the United States was formed, slavery had been abolished, it was 
deemed expedient to secure, by a stipulation to be inserted in the 
Constitution, a right in the citizens of one state, whose servants or 
slaves should escape from their masters and take refuge in another 
state, to reclaim such fugitives and subject them again to bondage. 

This stipulation is comprised in the third division of. section 2, article 
4, and is in these words : — " No person held to service or labour in one 
state under the laws thereof, escaping into another, shall in conse- 
quence of any law or regulation therein be discharged from such ser- 

* The late Honourable William Paterson, who was a member of the convention by 
which the Constitution cf the United States was formed, speaking of the mode which 
is prescribed by that instrument for the regulation of direct taxes, says, " The pro- 
vision was made infuvour of the Southern States. They possessed a large number of 
slaves; they had extensive tracts of territory, thinly settled and not very productive. 
A majority of the states had but few slaves, and several of them a limited territory, 
well settled and in a high state of cultivation. The Southern States, if no provision 
had been introduced in the Constitution, would have been wholly at the mercy of the 
other states. Congress, in such case, might tax slaves at discretion or arbitrarily, and 
land in every part of the Union after the same rule and measure. — so much a head in 
the first instance, and so much an acre in the second. To guard them against impo- 
sition in these particulars ivas the reason of introducing the clause in the Constitution 
which directs that representatives and direct taxes shall be apportioned among the 
states according to their respective numbers." See 3 Dallas' Reports, 177. 



FUGITIVE SLAVE LAWS. HI 

vice or labour, but shall be delivered up on claim of the party to whom 
such service or labour may be due." 

The question has been, especially of late years much agitated 
whethe? the intent of this provision of the Constitution was to clothe 
Congre s with the power of legislating in respect to the ^^rx-ender of 
the persons who, being held to service or abour m on« state have 
escaped into another, or whether it was intended to leave it to the 
sevS states to provide a mode for the investigation of claims which 
might be made, and, if found for the claimants, to deliver up the fugi- 

'"TMs'qSion has been set at rest by the decision of the Supreme 
Court of the United States that the power belonged exfuswdyioi^^ 
Federal Government. Frigg vs. The Commonwealth of Pennsylvama, 

^Tmucii mL^fmportant question is, In what mode ought the power 

*' The'two' acts 'of Congress on the subject-the first passed February 
12, 1793! the Lo.^, September 18, 1850-have intrusted the en ire 
executioi of the power to the judgment of a single person, and that, 
too'^thout any regard to his qualifications for the proper perform- 

^^5^f ^:^i"J:?ti^c:?^ act of HOS, relating to fugitives fro., 
labour ITn these words:-" When a person held to labour in any of 
the United States T in either of the territories on the northwest or 
south of the Hv?; Ohio, under the laws thereof, shall e.c.^. in any 
other of the said states or territories, the person to whom such laborer or 
service may be due, his agent or attorney, is hereby empowered to seize 
or aSest such fugitive ft-om labour, and to take him or her before any 
iud^e of the Circuit or District Courts of the United States, residmg 
rllin/witMn the state, or before any magistrate of a county, ctty or 
toionZ^poafe wherein such seizure or arrest shall be made ; and upon 
ZoUo^the satisfaction of such judge or magistrate, either ^y oral testi- 
mony or affidaii taken before and certified by a ^^S^^tra te of any 
such state or territory, that the person so seized or arrested doth, 
unct the haws of the Sate or territory from which he or she fled owe 
service or labour to the person claimmg ^'\Z^^'\'^f^^^^ 
rlntv of such ludge or magistrate to give a certificate theieot to sucn 
claimant ht igent or attorney, which shall be sufficient warrant for 
reZvrng the sSid fugitive from labour to the state or territory from 

"S li::nslotesls the same powers i^ certain .0...^^^^^^^^^^ 
ing their appointments from the ^^^^r^^ ^n-cui Courts of the ^^^^^^ 
States These commissioners were not origmal y selected tiom any 
supposed qualification for judicial functions. They were a specie of 
ixSr committing magistrates, who sought the appointment for its 
T^^rruTsiter The y«c/^.. of the Circuit and District Courts of the 
uS States may perform the same duties. But, as they are few in 
numter and no^ easily accessible, and as the act gives to the caunant 
Tright to SELECT out of the whole of the f-^tionanes nam^^^^^^^^^ 
nne as he mav prefer, in practice the judges are usually passed over, in 
S! imder The ait of 1793, nearly all the cases fell into the hands of 



112 FUGITIVE SLAVE LAWS. 

a few justices of the peace in each particular locality ; and these were 
men in whom the general community had no confidence. 

But the strong objection to the tribunal — whether o, judge of a court, 
or a justice of {he peace, or a commissioner — is, that a question affecting 
HUMAN LIBERTY, nOt for a da?/ or a pear, but for a lifetime, is com- 
mitted to one person, and that person chosen by the very men who 
WOULD take away tMs inestimable gift of the great Author of our 
being ! 

An essential part of every case arising under these acts of Congress 
has respect to the identity of the alleged fugitive. And identity of per- 
son is very frequently a matter most difficult of ascertainment. In 
relation to slave cases this is eminently true. A slave escapes while 
yet a youth, and years elapse before the owner pursues him. During 
this interval the boy or girl may have reached middle life, and a marked 
change in personal appearance has taken place. Some one — the mas- 
ter or overseer or a neighbour — makes a visit to a Northern city, on 
some wholly different business from slave-hunting ; but, knowing of 
the escape, he concludes to keep a bright look-out for the runaway. He 
descries an active waiter at a hotel. May not this be the runaway ? 
He tries to recall his peculiarities, — his voice, his gait, and the like. 
He fancies a resemblance, and determines to make the experiment of 
arresting the unsuspecting victim. He has been furnished, probably 
before he left his home, with the names of the proper constable, the 
proper lawyer, and the p)roper justice of the peace or commissioner. 
If not himself the owner, he maybe a loitness ;* and in a short hour or 
so the machinery is put in motion, and the alleged fugitive finds him- 
self in irons, after a sham hearing, in which he has had no opportunity 
to see a friend or adduce a witness, a prisoner in a railway- car, which 
soon bears him beyond the possibility of successful pursuit by all who 
can syn»pathize with his sufferings or assist him in a fair trial for 
freedom. 

A fair trial for freedom ! This is the answer which is given to 
silence the objection to the summary proceeding which the act of Con- 



* There is another highly important consideration -which belongs to this topic. 
Coloured 'persons seized as slaves are, by the agents of their alleged owners, compelled 
by threats and stripes to admit themselves to be slaves, — slaves of -whomsoever these 
agents may name as their masters. The case of Elizahetli Parker, one of the sisters 
kidnapped in December, 1851, from Chester county, furnishes a memorable example 
of this extorted confession. Even after she had been brought back as far as Baltimore, 
in an intervie-w -with the respectable counsel employed by the state of Pennsylvania 
in her behalf she at the first told them she was the, slave of Mr. Schooljield, her pre- 
tended o-wner. And it -was not until she -was convinced by their assurances that they 
were her friends, that she ventured to tell the truth and relate the story of her kid- 
napping. 

The relation of Solomon Nm-tMip, rescued after twelve years' captivity, gives shock- 
ing details of the punishment to -which he -was subjected to compel him to confess 
himself a slave. 

These are not exceptional cases. It is -well kno-wn to be a part of the system of 
Tiidnapping. 

Ought it to be permitted that any one man should have the po-wer of determining 
the value of such evidence? If there -were three commissioners, and these not under 
the bias of the double fee, the thing -would be less objectionable. But there is no 
tribunal that ever has been devised equal to the Constitutional one, — a court and 
jury sitting -with open doors, and assisted by able counsel accustomed to the trial of 
causes. 



FUGITIVE SLAVE LAWS. 113 

gress permits. The decision of the commissmier — for nearly all this 
nefarious business is now transacted by this class of arbiters — is, say 
the supporters of the law, merely initiative, and not final. So soon as 
the fugitive reaches the home of his master, he may demand a trial for 
freedom, and, if not a slave, he will be declared free. 

Here lies the grand fallacy which has deceived Northern Congress- 
men and soothed the consciences of their constituents. A fair trial for 
freedom in a slave state, by a negro born in a free one, is impossible. 
I refer to the laws on that subject, and to my remarks upon them, as 
abundant evidence to sustain this strong assertion. See ante, 52, 53. 

No reliance should be placed upon any single person as a substitute 
for a court and jury lohere the arrest is made. The Constitution fully 
sanctions a jury trial. It is the accustomed mode to determine all 
questions in which the ascertainment of facts is the principal duty. 

Both acts of Congress authorize, as evidence on thejiearing where 
the alleged fugitive is arrested, ex parte affidavits on behalf of the 
claimant. This is contrary to the practice of all well-constituted 
courts. In the act of 1850 this anomaly is carried so far as in express 
terms to justify such evidence to prove identity. How is this possible? 
Can a person in Alabama, or anywhere else, so describe the personal 
appearance of another that, by reading the description, a third person 
can certainly know to whom it applies ? Will it be said he may be de- 
scribed by scars from casualties or from artificial marks? A brand 
of a letter or letters of the alphabet approximates most nearly to reliable 
evidence of this kind. But even this would give no certainty; and, at 
all events, unless the description in all other particulars could be made 
in the same affidavit, a single correspondence in artificial marks would 
prove nothing. 

But, to a willing commissioner, identity, or any thing else, may be 
proved by affidavit. It must have been in this way, I presume, that a 
coloured man named Gibson, shortly after the passage of the act of 
1850, was arrested in Philadelphia, taken before a commissioner, who 
gave to his captors a certificate, under the act of Congress, that Gibson 
was a fugitive from Maryland, where he owed service or labour to one 
Mitchell. On sight of the man, however, Mitchell declared he 

DID NOT KNOW HIM, AND HAD NO CLAIM UPON HIM ! 

Happily for Gibson, the fear of a rescue induced the captors to ask 
the aid of the police to guard the prisoner, until, by being placed in a 
railway-car, it was supposed the apprehended danger would cease. 
The officers selected for this pui'pose, however, received, from the 
honest heart of their superior, directions that they should continue 
with the prisoner until lie should be delivered to Mitchell, and should bring 
him back if not claimed by him. Faithful to their duty, faithful to the 
behests of humanity, the officers brought the captive freeman home 
again. 

The injustice of the cardinal principle of these acts of Congress is, 
I trust, clearly shown. 

The act of 1850 contains several other provisions of a most excep- 
tionable and humiliating character in respect to free while citizens. 

All marshals and deputy-marshals are bound to execute the ivarrants 
issued by a commissioner to arrest an alleged fugitive ; and they are 

10« 



114 FUGITIVE SLAVE LAWB, 

made responsible to the claimant should he be taken and aftei'Tvarda 
escape. This is not an unusual condition in regard to process against 
individuals arrested for debt or accused of crime ; and the officers, hav- 
ing sought or at least voluntarily entered upon the office, have no right 
to complain. 

But the commissioner may direct his warrant to any other person ; 
and this person, or commissioner himself, may '^summo7i and call to 
their aid the bystanders, or posse comitatus, when necessary to insure a 
faithful observance of the clause of the Constitution referred to, in 
conformity with the provisions of this act ; and all good citizens are 
commanded to aid and assist in the prompt and efficient execution of 
the law, whenever their services may be required as aforesaid for that 
purpose." 

By the common law, and also by statute of HeJi. V., the high power 
of enforcing the assistance of all the king's subjects, over fifteen years 
of age and under the degree of peers, to suppress riots and arrest 
felons, &c., is undoubtedly conferred upon a /ligih-sheriff smcl upon two 
justices of the peace. But the act of Congress intrusts an equally high 
power to the discretion of the commissioner, or to a single delegate of the 
commissioner. And this tyrannical exaction, from which no age or 
calling is exempt, is not for the purpose of preserving the public peace 
or to arrest rioters and felons, but to enable the alleged master of a 
slave to obtain or keep possession of him, in order that he may be car- 
ined away and subjected to bondage for life. 

To assist with all his faculties in preserving the public peace, in the 
suppression of riots, or even in the arrest of felons, is a high duty, from 
which no good citizen will shrink. But to be converted into catch-polls, 
or, what is nearer the mark, compelled, in the North, to be substitutes 
for bloodhounds in the South, in the ignoble chase of unfortunate ne- 
groes struggling for freedom, is insufferably degrading and revolting. 

To obey the command of known public functionaries chosen by the 
people may be reasonable and safe. But when the call is made by an 
unknown deputy of an unknown commissioner, who can tell whether 
he ought, in mere prudence, to act or refuse ? 

But there is yet another provision of the act of 1850, which throws 
in the shade even these indefensible and before unheard-of anomalies. 
"In all cases where the proceedings are before a com7nissio7ier, he shall 
be entitled to a fee of ten dollars in full for his services in each case 
tipon the delivery of said certificate to the claimant, his or her agent or 
attorney; or a fee of five dollars, in cases tvhere the proof shall not, m 
the opinion of such commissioner, warrant such certificate and delivery, in- 
cluding all services incident to such arrest and examination, to be paid 
in either case by the claimant, his agent or attorney." 

On giving the certificate to the claimant, the commissioner is to be 
paid '■'•a fee of ten dollars;'''' for refusing it, his fee is reduced to fivk 
dollars. The only diflFerencc in the labour of the commissioner, in the 
one case and the other, consists in the writing of the certificate. Every 
thing to be done by him, up to this point, is precisely the same. The 
question then is, What is the manual labour of such a writing fairly 
worth ? 

The following is submitted as a form of the certificate prepared in 



FUGITIVE SLAVE LAWS. 115 

ionformity -with the directions of the statute: — "I hereby certify that 
negro Betsy owes service to John Jones, of Savannah, state of Geor- 
gia; that she escaped from said state into the state of Pennsylvania, 
where she was arrested; and I hereby authorize said John Jones to 
use such reasonable force and restraint as may be necessary to take 
and remove her to the said state of Georgia." 

This certificate contains just sixty words; and, by the recording act 
of Pennsylvania, would entitle the recorder, were it an instrument re- 
quiring to be recorded, to the fee of one cent for every ten words. It 
is, therefore, worth six cents. An ordinary penman would execute it 
readily in three minutes. 

Is it not demonstrable, therefore, that, in giving j^re dollars for these 
three minutes' labour, something more than compensation was intended 
to be offered ? In a free state, an office whose chief duties are such as 
the act of Congress prescribes can never be regarded as a post of 
honour. It will be sought for or retained, solely, for the emoluments. 

These remarks are but suggestive. 

The remarks which have been made on the acts of Congress, if well 
founded, require radical changes in the legislation of Congress to 
carry out, in a proper manner, the constitutional provision in respect 
to fugitives from labour. 

But if the present sj^stem of confiding the decision of so important 
a question as liberty or slavery to a sinr/le arbiter is to be retained, 
some restriction should at once be placed on the exercise of this tre- 
mendous power, to warrant the least hope that a fair trial will be 
had. 

In an act of Assembly of Pennsylvania, passed March 25, 1826, there 
were two provisions which experience has shown to be of great value 
in order to secure a fair trial. 

I transcribe so much of the 5th and 10th sections of that act as may 
be necessary to disclose the principle of the legislation which I have in 
mind. 

" Sect. 5. — That it shall be the duty of any judge, justice of the peace 
or alderman, when he grants or issues any warrant under the provisions 
of the third section of this act, to make a fair record on his docket of 
the same, in which he shall enter the name and place of residence of 
the person on Avhose oath or affirmation the said warrant may be 
granted, and also, if an affidavit shall have been produced under the 
provisions of the fourth section of this act, the name and place of resi- 
dence of the person making such affidavit, and the age and description 
of the person of the alleged fugitive contained in such affidavit, and 
shall, within ten days thereafter, file a certified copy thereof in the 
office of the Clerk of the Court of General Quarter Sessions of the 
Peace, or Mayor's Court, of the proper city or county. 

"Sect. 10. — That it shall be the duty of the judge or recorder of 
any court of record of this commonwealth, when he grants or issues 
any certificate or warrant of removal of any negro or mulatto, claimed 
to be a fugitive from labour, to tlie state or territoi-y from which he or 
she fled, in pursuance of an act of Congress passed on the twelfth day 
of February, one thousand seven hundred and ninety-three, entitled 
*An act respecting fugitives from justice, and persons escaping from 



110 FUGITIVE SLAVE CASES. 

the service of thcii* masters,' and of this act to make a fair record of 
the same, in which he shall enter the name, age, sex, and a general 
description of the person of the negro or mulatto for whom he shall 
grant such certificate or warrant of removal, together with the evi- 
dence and the name of places of residence of the witnesses and tho 
party claiming such negro or mulatto, and shall, within ten days there- 
after, file a certified copy thereof in the ofiice of the Clei-k of tlie Court 
of General Quarter Sessions of the Peace, or Mayor's Court, of tho 
city or county in which he may reside." 

I will close my remarks upon the article of the Constitution and the 
acts of Congress, by bringing to notice decisions of the courts, fixing 
tho construction of some of the most important provisions in tliem. 

Tlie acts of Congress and the article of the Constitution of the 
United States above cited are so essentially connected, that the judi- 
cial decisions to which 1 have alluded have been made generally as 
much in reference to the one as to the other. I shall not, therefore, 
attempt a distinct classification. 

The first case of an important character, as relates to the present 
chapter, was that of Butler vs. Hopper, already inserted at consider- 
able length. It was there said, by Judye Washington, that the " second 
section of the fourth article, {i. e. of the Constitution of the United 
States,) which declares that no person held to labour or service in one 
state under the laws thereof, escaping into another, shall, in consequence 
of any law therein, be discharged from such service, did not extend to tho 
case of a slave voluntarily carried by his master into another state and 
there leaving him under the protection of some law declaring him 
free." 1 Washington^ s CHrc. Court Rep. 501. 

At October term, 1823, the principle of the decision in Butler vs. 
Hopper Avas again recognised by Judge Wasldngton, on an application 
preferred by J. W. Simmons, agreeably to the act of Congress of Feb- 
ruary 12, 1793, for a certificate that James Mathist, a black man, was 
his slave. It was proved in this case that Simmons was a citizen of 
Charleston, South Carolina, and had lived there generally till within a 
few years, when he came to the city of Philadelphia, took a house, and 
with his family had resided in the city ever since. James was ad- 
mitted to have been his slave before and at the time of his leaving 
Charleston, and as such to have been brought by him to Fhiladelphia in 
June, 1822. Upon these facts the judge refused the certificate and 
dismissed the application, saying that the act of Congress apjilied exclu- 
sively to fugitive slaves, and not to those whom their masters themselves 
brought from one state to another, 4 Wash. C. G. Ji. 39G ; ac. 1 Morris' 
Hep. 1. 

A third case may be adduced, decided on the twentieth of February, 
1826, by Judge Barnes, then President of the District Court for the 
city and county of Philadelphia, upon the following facts : — ''Marshall 
Greene, a black man, was claimed as a slave by Feter Buchell, adminis- 
trator, &c. of John Buchell, deceased, who for many years before and 
at the time of his decease was an inhabitant of Cecil comity, Maryland, 
About four years previous to the hearing before Judge Barnes, and one 
year before the death of Jo)in Buchell, Marshall absconded from hia 
master's residence, and continued absent until August, 1825, when 



FUGITIVE SLAVE CASES. 117 

he was arrested by Peter Buclxell and carried back to Maryland. At 
the time Avhen he absconded he took with him his three children, who 
were alleged also to be slaves. After ^larsliaWs return to Maryland, 
in August, 1825, Peter Buchell, then his master, in order to obtain 
possession of these children, gave him permission, and for that purpose 
furnished him with a pass, to come to Pennsylvania, upon his express 
promise that he would, within a certain period, if successful in the 
l^ursuit of his children, bring them to his master.; if not successful, 
he would return himself. The time of absence granted by the master 
having expired, Marshall was again arrested, by virtue of a warrant 
issued by Judge Barnes, in compliance with the directions of the act 
of Assembly of the commonwealth of Pennsylvania, passed March 25, 
1826, and brought before him for a hearing. The judge, having taken 
time for deliberation, refused the certificate applied for by the master 
under the act of Congress, upon the ground, which was ably supported 
in the opinion he pronounced, that the act of Congress did not embrace 
a case like that before him, inasmuch as Marshall was not a fugitive 
slave, — had not "escaped fi*om one state into another," — but, by his 
masters consent, had left Maryland and come into Pennsylvania. 

The Supreme Court of Massachusetts has expressed its concurrence 
with the foregoing decisions of Judge Washington, [Commomvealth vs. 
Aves, 18 Pickering, 219. 

A construction of considerable importance has been placed upon 
another portion of the act of Congress by the Supreme Court of Penn- 
sylvania, in a case brought before it in 1819. The following is the 
reporter's statement prefixed to the decision of the court: — " This was 
a writ de homine replegia?ido, sued out by the plaintiff, a coloured man, 
against the defendant, who was the keeper of the prison of the city and 
county of Philadel2}hia ; and the defendant's counsel now moved to quash 
it, on the ground of its having issued contrary to the Constitution and laws 
of the United States. The facts were submitted to the court in a case, 
stated, by which it appeared that the plaintiff, having been claimed by 
Rasin Gale, of Kent county, in the state of Maryland, as a fugitive from his 
service, was arrested by him in the county of Philadelp)hia, and carried 
before Richard Renshaiv, Esq., justice of the peace, who committed the 
plaintiff to prison, in order that inquiry might be made into the claim 
of the said Gale. The plaintiff then sued out a habeus corpus, return- 
able before Thomas Armstrong, Esq., an associate judge of the Court 
of Common Pleas. Judge Armstrong, having heard the parties, gave 
a certificate that it appeared to him, by sufficient testimony, that the 
plaintiff owed labour or service to said Gale, from whose service, in 
the state of Maryland, he had absconded ; and the said judge, there- 
fore, in pursuance of the act of the Congress of the United States, &c., 
delivered the said certificate to the said Gale, in order that the plain- 
tiff might be removed to the state of Maryland.'" The court, having 
held the case under advisement for several days, directed the writ to be 
quashed, on the ground that, by the act of Congress, the certificate of 
the judge was conclusive evidence of the right of the master to remove 
the plaintiff to the state of Maryland, and, therefore, that no writ of a 
civil nature could be issued to interrupt the master in the exercise of 



118 FUGITIVE SLAVE CASES. 

the power conferred upon him by the certificate, Wright [otherwise 
called Hall) vs. Deacon, b Sergeant ^ RaioWs Reports, 62-4. 

But the Constitution of the United States does not exempt runaway 
slaves from the penal laws of a state in which they may happen to flee 
upon escaping from their masters. As, where a slave had absconded 
from his master, living in the state of Maryland, and was afterwards 
confined in prison in the city of Philadelphia, upon the charge of for- 
nication and bastardy, committed during his residence in Pennsyl- 
vania, the Supreme Court refused to deliver him to his master, but 
ordered him to be detained, to answer the charge which had been 
made against him. Case of the Commomvealth [on the relation of Johnson, 
a negro) vs. Ilolloway, 3 Sergeant ^ RaicWs Reports, 4-6. And see, for 
a similar opinion, 9 Johnson's (-V. 1".) Reports, 70; Glen vs. Hodges. 

But it was held in this latter case, by the Supreme Court of the state 
of New York, that where a slave had absconded from his master, living 
in the state of New York, and had taken refuge in Vermont, a citizen 
of the latter state, who had traded with him under the belief that he 
was free, and as such had given credit to him for goods, could not issue 
civil process to prevent the master from reclaiming him, inasmuch as 
a slave is, in law, incapable of making a contract.* 

It has been decided in Maryland, Virginia and Louisiana, that if a 
master consent to his slave's being taken to a free state, whereby he 
becomes free theke, he cannot, on a return to his master, be held as 
a slave, but is entitled to his freedom. Bland vs. Negro Doivling, 9 Gill 
and Johnson's Rep. 19 ; Betty vs. Horton, 5 Leigh's Rep. 615; Josephine 
vs. PouUney, 1 Louisiana Annual Reports, 329. The same point had 
been decided in Louisiana on several previous occasions. See 14 
Marii7i's Reports, 403 ; 13 Louisiana Reports, 441. Yet the whole have 
been rendered nugatory m this state by an act of the legislature, in 
1846, that "no slave shall be entitled to his or her freedom, ujider the 
pretence that he or she has been, with or without the consent of his or her 
owner, in a country where slavery does not exist, or in any of the 
states where slavery is prohibited." Louisiana Statutes, 524. 

A question in which this general doctrine is involved is noio pending 
in the Sup-reme Court of the United States. Having been free, by 
virtue of the laws of the country or state to which he had been volun- 
tarily carried, I am at a loss to conjecture the course of reasoning by 
which he is to be converted into a slave. 



* See supra, p. 41. 



CHAPTER III. 

OF THE JURISDICTION OP THE FEDERAL GOVERXBIENT OVER THE 
TERRITORIES NOT YET FORMED INTO STATES. 

By several treaties with foreign powers, and by cessions from niany 
of the original states of the confederacy, the Federal Govei-nment has, 
at different times, acquired lawful and peaceable possession of a vast 
extent of country, much of which is not yet formed into states but is 
known by the name of territories. Over these territories the Federal 
Government is expressly authorized by the Constitution to exercise 
entire jurisdiction. The provision alluded to, of the Constitution, is 
this : — " Congress shall have power to dispose of and make all needful 
rules and regulations respecting the territory) or other property belong- 
ing to the United States." Art. 4, \ 3. Unless, therefore, the treaties 
and acts of cession impose conditions, the authority of the Federal 
Government over the territories is without limit. And such is not 
only the plain intent, but has been the uniform construction, of this 
article of the Constitution. 

The territory northwest of the river Ohio was ceded, happily, upon 
the condition* that slavery'' should not be permitted there. On the 
contraiy, the deed of cession of the territory south of the same river, 
forming at this time the state of Tennessee, made it imperative on 
Congress to tolerate it within the limits of that cession. The treaties 
by which the Federal Government derives title to Louisiana and the 
Floridas contain 'no provision on the subject. 

With respect to Louisiana, pi'evious to the formation of a state out 
of a part of its territory, it was competent to the United States to 



* In the celebrated debate in the Senate of the United States, in 1830, Mr. Webster 
iscfibed the merit of incorporating this important condition in the ordinance for the 
government of the Northtvestern Territorxj, to Nathan Dane, who at the date of the 
ordinance was a member of Congress from Massachusetts. It has been shown by 
3lwa.rd Coles, formerly Governor of the state of Illinois, in a paper read before the 
Historical Society of Pennsylvania, June 9, 1856, entitled "History of the Ordinance 
of 1787," that the original effort on this subject was made by Hiomas Jefferson soon 
after the cession of territory by Virginia on March 1, 1781. On the 19th of April, 
1784. a motion was made in Congress, by which the condition was rejected. On March 
16, 1785, Rufus King, then of Massachusetts, moved the restoration of Mr. Jefferson's 
proposition, and it was adopted, eight states voting /ar and three against it. 

Mr. Dane took his seat in Congress, November 17, 1785, and was appointed one 
of a committee of five by whom an ordinance for the government of the territory was 
reported. The prohibition of slavery as it now stands in the ordinance was part of 
this report, and the whole ordinance was adopted unanimously by Congress, July 
13, 1787. 

That the great conception of prohibiting slavery in that territory belongs to ilAr. 
Jefferson there can be no doubt. The difference between his proposition and that 
which was finally adopted was, that 3Ir. Jefferson named ^' after the year 1800" as the 
time at which the prohibition was to take effect, whereas, as adopted, it was contem- 
poraneous with the date of the ordinance. The difference was of small importance, 
for the whole territory was little else than a wilderness. 

It is worthy of rcmaik that Mr. Jefferson drew up a Constitution for Virginia, in 
which all persons born after the same year — .v.d. 1800 — wer« to be free. 

' 119 



120 MISSOURI COMPROMISE. 

have annihilated the institution of slavery within the tvhole of its ex- 
tensive borders. It is competent for her now to do so, as to those 
portions which are not comprised within the bounds of the two states 
which have been created out of it. It is hardly necessary to apply 
this remark specifically to the Floridas ; they are obviously in a similar 
predicament. 

The abolition of slavery in her territories has not been attempted by 
the Federal Government, But highly important regulations have been 
made by Congress, on a point not very remotely allied to that subject. 
On the 7th of April, 1798, an act was passed by this body, "authoi-- 
izing the establishment of a government in the Mississippi Territory;" 
the seventh section of which provides "That, after the establishment 
of the aforesaid government, it shall not be lawful for any person or 
persons to import or bring into the said 3fississippi Territory, from any 
port or place without the limits of the United States, or to cause or 
procure to be s-o imported, &c., or knowingly to aid or assist in so 
importing, &c. any slave or slaves; and that every person so offending, 
&c. shall forfeit, &c. for each and every slave so imported, &c. the 
sum of three hundred dollars, &c. ; and that every slave so imported, ^c. 
shall thereupon become entitled to and receive his or her freedom.''^ See acts 
of the 2d session of the 5th Congress, eh. 45. This section is incorporated, 
without the least variation, except as to the name of the territory, into 
the act of Congi'ess passed March 26, 1804, entitled, "An act erecting 
Louisiana into two territories, and providing for the temporary govern- 
ment thereof," with supplementary regulations, prohibiting, in the 
first place, under an equal penalty, the introduction into Louisiana 
Territory, "from any port or place loithin the limits of the United 
States, &c., any slave or slaves which had been imported since the first 
of May, 1798, into any port or place within the limits of the United 
States, or which should be imported thereafter from any port or place 
without the limits of the United States," and concluding in this man- 
ner: — "And no slave or slaves shall directly or indirectly be intro- 
duced into said territory, except by a citizen of the United States 
removing into said territory for actual settlement, and being at the time 
of such removal bona fide owner of such slave or slaves ; and every 
slave imported or brought into the said territory, contrary to the pro- 
visions of this act, shall thereupon be entitled to and receive his or 
her freedom." 2 Story's Laivs, 937. 

This act does honour to the illustrious body from which it proceeded. 
In practice, however, its benefits were of much less vakie than one 
not fully conversant with the mode in which the domestic slave-trade 
is prosecuted would be led to infer. A prohibition on this subject, to 
be effectual, should be absolute and without any exception. Actual 
settlers and bona fide oivners may protect this traffic to an extent adequate 
to the demand, without incurring a risk at all commensurate with the 
probable gain. 

But the act is of great moment as o, precedent to Congress in regard 
to the Missouri, the Arkansas and Florida Territories. The defects 
which have been suggested may be easily supplied. Let the introduc- 
tion of slaves into these territories be, without delay, wholly for- 
bidden. Humanity and religion, the character of our country, the 



MISSOURI COMPROMISE. 121 

true interests as well of the slave-holding as of the non-slave-holdiiig 
states, demand this to be done. 

The foregoing is the text as it stood in the first edition of this sketch. 
It was written at a time when the Missouri Compromise, then recently 
settled, was in full force. That Compromise prohibited slavery beyond 
thirty-six and a half degrees of north latitude. The justice and wisdom 
of this arrangement remained unquestioned for more than a third of a 
century. Arkansas, falling ityipliedly within the scope and spirit of the 
Compromise, was admitted in 1836, without the slightest opposition 
from any quarter, as a slave-holding state. California, formed out of 
territory acquired long after the date of the Compromise, and there- 
fore not in the view of Congress at the time, made her oicn election to 
insert a prohibition of slavery in her Constitution, and was in like 
manner received into the Union. 

Suddenly, while the Indian title still remained intact, and neither 
propriety nor necessity required any action looking forward to the 
formation of a new state, a Senator from a free state announced the 
discovery that there was in the slavery-prohibition of the Missouri Com- 
promise a principle at variance with the free and equal spirit of our 
republican government. A majority of both houses of Congress and 
a President of the United States have ratified this discovery, and the 
Missouri Compromise has been annulled. 

The author of the discovery has, within a short time, as chairman 
of the Committee on Territories, made a report to the Senate of the 
United States, in which he has undertaken to show that the provi- 
sion of the third section of the fourth article of the Constitution of the 
United States gives no authority to Congress "to organize temporary 
governments for the territories" belonging to the Union. Since the 
adoption of the Constitution, no one else seems to have entertained a 
doubt upon this subject. National legislation has uniformly recognised 
it, from the first moment when the condition of the teri'itories was 
supposed to 7ieed "rules and regulations,^'' until and inclusive of the Ne- 
hmska- Kansas act itself. The power is expressly given in the section 
and article referred to. There are two distinct grants contained in 
the same sentence. There is a power given "to dispose of the territory 
belonging to the United States," which has been exercised directly, 
perhaps, on several occasions, but certainly in one, — the act of Con- 
*;ress of June 7, 1836, by which "the Platte purchase^' was ceded to 
the state of Missouri, augmenting its territorial limits one-seventh more 
than were originally included within them. 

The second grant of power in the third section of article fom^th of 
the Constitiition is to "make all needful rules and rcgidations respect- 
ing the territory." Can any language be more expressive, distinct, ap- 
posite and plenary for the purpose of enabling the establishment of a 
territorial government? And can any be less suitable, and therefore 
more inriij-iblc to declare such an intent, than the provision in regard 
to the admission of new states ? 

The Missouri Compromise was emphatically ^n act of peace. It calmed 
at once the stormy elements which the subject of slavery invariably 
excites when brought into the full view of the people of the free states. 

11 



122 MISSOURI COMPROMISE. 

The spirit of enterprise and adventure which has so long distinguished 
the inhabitants of the North, but which is scarcely known at all in the 
South, had ample scope in the virgin soil of Iowa, Wisconsin and Min- 
nesota, and would have been content with this theatre of action until 
the extinction of the Indian title should have prepared the way for the 
peaceful extension of the arts of civilized life in Kansas and Nebraska. 

But the undisguised purpose in the repeal of this compromise — 
namely, the introduction and ultimate establishment of slavery in these 
fertile regions, which had been consecrated to freedom by that Compro- 
mise — has waked up a spirit of strife which, if appeased at all, can 
be done only by an honourable restoration of the plighted faith 
of 1820. 

Had the Ilissouri Compromise nothing else to recommend it than the 
recollection of the circumstances in which it originated, this alone 
would have been a sufficient reason, with most minds, to suffer it to 
remain undisturbed. But when the inevitable effects of annulling it 
could be so readily foreseen, what shall be said of the prescience, or 
patriotism, or mere statesmanship, which could have suggested its 
repeal ? 

Looking at the subject of slavery in a national point of view, as in 
plain conflict with the Declaration of Independence and the genuine 
spirit of our republican government, — by the light of philanthropy, 
which is the proper heritage of man, — or by the teachings of political 
economy, resting on the basis of selfishness alone, — no better or wiser 
measure was ever conceived by the Congress of the United States tljjjp 
the Missouri Compromise 



NOTE A; p. 11. 

In the former edition of this work this language was used : — ** Never- 
theless, the cardinal principle of slavery, that the slave is not to be 
ranked among sentient beings, but among things,''^ &c. 

Professor Bledsoe, in his recent apology for slavery, takes exception 
to what, as it stood, was properly a mere parenthetical remark; i.e. that 
slaves are not ranked by the slave law among ^^sentient beings.^^ In 
strictness, his criticism is just; and I have, therefore, left out the words 
objected to. But the very pith and point of the sentence — that the 
slave is regarded by that law as a thing — he does not attempt to con- 
trovert. How verg near the truth the original expression is the reader 
will see by a careful study of the quotation which I have given from 
the decision of the Supreme Court of North Carolina. Ante, 10. 

As further illustrations of the same approximation to truth in this 
particular, — the denial to the slave of the attributes of a sentient being, 
— I commend to the sober reflection of the learned professor the follow- 
ing adjudications of the highest courts of judicature in two of the 
Southern States. The Jirst of these is a decision of the Supreme Court 
of Georgia. 

A slave — a carpenter — was hired to the owner of a steamboat, 
which was under the management of an agent of the owner. Some 
perilous service — the precise character of which is not clearly stated — 
was exacted of the slave by the owner's agent, the captain. It would 
seem that in the performance of this service the captain, through igno- 
rance or carelessness, subjected the slave to such peril that he lost his 
life. The master of the slave sued the owner of the boat to recover the 
value of the slave. The defence was that the slave's life had been lost not 
through any act of the owner of the boat, but by the improper conduct 
of the captain ; and that it was a rule of law that, for an injury occa- 
sioned to one employee by the negligence or improper conduct of another 
employee, the common superior of the two was not liable. 

This rule having been relied upon by the defendant, its applica- 
bility where the injured employee was a slave was denied, on the ground 
that a slave had no will of his own, but was bound to surrender his 
own judgment, however correct, to the command of any one whom the 
law for the time being had constituted his master. 

The plaintiff's counsel summed up his argument with this terrific 
proposition: — ''Their [slaves') position in our section of the country 
would not allow them to direct or interfere ; complain they dare not, 
and LEAVE they cannot." 

Lumpkin, J., after adverting to this rule of law and the grounds 
upon which it was established, asks, "Can any one of these consi- 
derations apply to slaves ? They dare not interfere with the business 
of others. They would be instantly chastised for their impertinence. 
It is true that the owner or employer of a slave is restrained by the 
penal code from inflicting on him cruel, imnecessary and excessive 

123 



124 PROFESSOR BLEDSOE'S CRITICISM. 

punisliment, and that all others are forbidden to Tbeat, whip or "wound 
them without sufficient cause or provocation. But can any one doubt 
that if this unfortunate boy, although shipped as a carpenter, had 
been ordered by the captain to perform the perilous service in 
which he lost his life, and he had refused or remonstrated, that 
he would have received prompt correction ? and that on the trial, on 
a bill of indictment for a misdemeanour, his conduct would have 
been deemed a sufficient justification for the supposed offence ? No ! 
Slaves dare not intermeddle ivith those around them, embarked in the same 
enterprise with themselves. Neither can they testify against their miscon- 
duct. Neither can they exercise the salutary discretion left to free white 
agents, of quitting the employment when matters are mismanaged or portend 
evil. Whether engaged as carpenters, bricklayers or blacksmiths, as 
ferrymen, wagoners, patroons or private hands, in boats or vessels, in 
the coasting or river navigation, or railroads, or any other avocation, 

THEY HAVE NOTHING TO DO BUT SILENTLY SERVE OUT THEIR AP- 
POINTED TIME, AND TAKE THEIR LOT IN THE MEAN WHILE IN SUB- 
MITTING TO WHATEVER RISKS AND DANGERS ARE INCIDENT TO THE 

EMPLOYMENT." Scuddcr VS. Woodbridge, 1 Kelly's Rep. 197-200, 

This is the language of a court of aVzZ jurisdiction. Take a case 
falling within range of cnmtnaZ jurisprudence. 

In Britain vs. The State, (of Tennessee,) S JIumphrey's Eep.20S, 
a master of a slave was held to be indictable for keeping his slave 
employed in public view in apparel so tattered and torn as indecently 
to expose her person. 

This decision is rested entirely on the ground that the feelings of 
the community were outraged by such exposure of the slave by her 
master's neglect. The injury or wrong to the slave is not hinted at ; 
and it is quite certain the law would not interfere in her behalf, no 
matter to what extent humanity in her feelings was affected. The 
principle of the decision is just the same as would be invoked against 
the owner of a horse who should turn out the animal to die on the 
commons while suffering from any loathsome disease, — the glanders, 
or the like. The owner would be punishable, not because the animal 
deserved better treatment, but because the community in its interests 
or its taste would be offended. 

Do these decisions regard the slave as a sentient being, or as a mere 
thing ? 

I add a third case, — Fairchild vs. Bell, 2 Brevard's (South Carolina) 
Reports, 129, — and transcribe the very language of the reporter : — 
"The plaintiff was a physician, who, seeing, not far from his resi- 
dence, a female negro slave, belonging to the defendant, in the road, in 
a miserable condition, almost naked, shockingly beaten, and having an iron 
on her leg of fifteen pounds' tveight, was induced, from motives of hu- 
manity, to take her to his house, where she was carefully attended, 
clothed, nourished and cured. 

" The action was to recover the amount of his account, for medi- 
cine and attendance expended on that occasion. The defendant 
avowed the beating and other ill-treatment of the wench, but utterly 
refused to satisfy the plaintiff for his services in the care and eure 
of her. 



PROFESSOR Bledsoe's criticism. 125 

" It was clearly proved at the trial that the defendant had exer- 
cised towards the poor slave a continued series of cruelties, and 
that she must have perished but for the humane assistance of the 
plaintiff. 

" The defendant was immediately applied to, to furnish the wench 
with clothes and necessaries ; but he refused to do so, was outrageously 
angry, and threatened to sue the plaintiff for harbouring his slave. 
The jury found for the defendant, contrary to the judge's charge." 
The doctrine of the court in this last case is not open to the objec- 
tion that it does not recognise a slave as a sentient being. But 
what a revolting picture do the facts present of injured humanity, 
without an intimation Jrom any quarter that there existed an effectual 
remedy ! The master admitted that he had perpetrated these mad- 
dening wrongs upon the slave, refused to bestow the slightest relief, 
and, with a shameless audacity not easily paralleled, " threatened to 
sue the plaintiff for harbouring his slave.'' And, in the end, the jury 
by their verdict sanctioned his conduct ! ! 



THE END. 



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